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EXHIBIT 10.2
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 3, 1997
Among
AMF BOWLING WORLDWIDE, INC.
as Borrower
and
THE INITIAL LENDERS AND INITIAL ISSUING BANKS
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.
and
CITICORP SECURITIES, INC.
as Arrangers
and
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
as Syndication Agent
and
CITIBANK, N.A.
as Administrative Agent
and
CITICORP USA, INC.
as Collateral Agent
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T A B L E O F C O N T E N T S
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms........................................................................... 3
1.02. Computation of Time Periods..................................................................... 39
1.03. Accounting Terms................................................................................ 39
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
2.01. The Advances.................................................................................... 39
2.02. Making the Advances............................................................................. 42
2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit.............................. 44
2.04. Repayment of Advances........................................................................... 46
2.05. Termination or Reduction of the Commitments..................................................... 50
2.06. Prepayments..................................................................................... 51
2.07. Interest........................................................................................ 56
2.08. Fees............................................................................................ 57
2.09. Conversion of Advances.......................................................................... 58
2.10. Increased Costs, Etc............................................................................ 59
2.11. Payments and Computations....................................................................... 60
2.12. Taxes........................................................................................... 62
2.13. Sharing of Payments, Etc........................................................................ 64
2.14. Use of Proceeds................................................................................. 65
2.15. Defaulting Lenders.............................................................................. 66
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to Initial Extension of Credit............................................. 68
3.02. Conditions Precedent to Each Borrowing and Issuance............................................. 78
3.03. Determinations Under Section 3.01............................................................... 79
3.04. Conditions Precedent to the Making of the New AXELs Series B Advances........................... 79
3.05. Conditions Precedent to the Effectiveness of the Third Amendment................................ 82
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Section Page
3.06. Determinations Under Sections 3.04 and 3.05..................................................... 86
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower.................................................. 86
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants........................................................................... 96
5.02. Negative Covenants..............................................................................107
5.03. Reporting Requirements..........................................................................117
5.04. Financial Covenants.............................................................................122
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default...............................................................................127
6.02. Actions in Respect of the Letters of Credit upon Default........................................130
ARTICLE VII
THE AGENTS
7.01. Authorization and Action........................................................................131
7.02. Agents' Reliance, Etc...........................................................................131
7.03. Citibank, Citicorp, Goldman and Affiliates......................................................132
7.04. Lender Party Credit Decision....................................................................132
7.05. Indemnification.................................................................................132
7.06. Successor Agents................................................................................134
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc.................................................................................135
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Section Page
8.02. Notices, Etc....................................................................................137
8.03. No Waiver; Remedies.............................................................................137
8.04. Costs and Expenses..............................................................................137
8.05. Right of Set-off................................................................................139
8.06. Binding Effect..................................................................................140
8.07. Assignments and Participations..................................................................140
8.08. Execution in Counterparts.......................................................................144
8.09. No Liability of the Issuing Banks...............................................................144
8.10. Confidentiality.................................................................................144
8.11. Jurisdiction, Etc...............................................................................145
8.12. Release of Collateral...........................................................................145
8.13. Governing Law; Waiver of Jury Trial.............................................................146
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Subsidiary Guarantors
Schedule III - Stockholders' Agreement
Schedule 3.01(e) - Surviving Debt
Schedule 3.01(p)(xx) - Local Counsel
Schedule 4.01(a) - Equity Investors' Ownership of Parent
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(m) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(v) - Environmental Laws Disclosure
Schedule 4.01(w) - Environmental Disclosure
Schedule 4.01(x) - Hazardous Materials Disclosure
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Schedule 4.01(bb) - Open Years
Schedule 4.01(ff) - Acquisitions by AMF Bowling Centers
Schedule 4.01(ii) - Existing Debt
Schedule 4.01(kk) - Owned Real Property
Schedule 4.01(ll) - Leased Real Property
Schedule 4.01(mm) - Investments
Schedule 4.01(nn) - Intellectual Property
Schedule 5.01(l) - Transactions with Affiliates
Schedule 5.02(a) - Existing Liens
Schedule 5.02(g) - Non-competition Agreements
EXHIBITS
Exhibit A-1 - Form of Term Loan Note
Exhibit A-2 - Form of AXELs Series A Note
Exhibit A-3 - Form of AXELs Series B Note
Exhibit A-4 - Form of Working Capital Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Intellectual Property Security Agreement
Exhibit F - Form of Mortgage
Exhibit G - Form of Holdings Guaranty
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Exhibit H - Form of Subsidiary Guaranty
Exhibit I - Form of Solvency Opinion
Exhibit J - Form of Solvency Certificate
Exhibit K - Form of Opinion of Counsel to the Loan Parties
Exhibit L - Form of Opinion of Intellectual Property Counsel
Exhibit M - Form of Mortgage Amendment
Exhibit N - Form of Opinion of Counsel to the Loan Parties regarding
Amendment No. 3 to the Original Credit Agreement
Exhibit O - Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel for
the Borrower regarding Amendment No. 3 to the Original
Credit Agreement
Exhibit P - Form of Second Mortgage Amendment
Exhibit Q - Form of Opinion of Counsel to the Loan Parties regarding
Amendment No. 2 to the Second Credit Agreement
Exhibit R - Form of Opinion of Counsel to the Loan Parties regarding
Amendment No. 1 to the Existing Credit Agreement
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of
November 3, 1997 among AMF BOWLING WORLDWIDE, INC. (formerly known as AMF Group
Inc.), a Delaware corporation (the "Borrower"), the banks, financial
institutions and other institutional lenders listed on the signature pages
hereof as the Initial Lenders (the "Initial Lenders") and the banks listed on
the signature pages hereof as the Initial Issuing Banks (the "Initial Issuing
Banks"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P. ("Goldman") and CITICORP SECURITIES,
INC., as arrangers (the "Arrangers"), GOLDMAN, as syndication agent (together
with any successor appointed pursuant to Article VII, the "Syndication Agent"),
CITIBANK, N.A. ("Citibank"), as administrative agent (together with any
successor appointed pursuant to Article VII, the "Administrative Agent") for the
Lender Parties (as hereinafter defined) and CITICORP USA, INC. ("Citicorp") as
collateral agent (together with any successor appointed pursuant to Article VII,
the "Collateral Agent", and together with the Syndication Agent and the
Administrative Agent, the "Agents").
PRELIMINARY STATEMENTS:
(1) The Borrower has previously entered into a Credit
Agreement dated as of May 1, 1996 (as amended, supplemented or otherwise
modified through but not including the Second Closing Date, the "Original Credit
Agreement") with certain Lender Parties and the Agents party thereto.
(2) The Borrower, certain Lender Parties and the Agents
amended and restated the Original Credit Agreement and entered into an Amended
and Restated Credit Agreement dated as of December 20, 1996 (as amended,
supplemented or otherwise modified through but not including the Third Closing
Date (as hereinafter defined), the "Second Credit Agreement").
(3) The Borrower, certain lenders (the "Existing Lenders"),
certain other Lender Parties and the Agents amended and restated the Second
Credit Agreement and entered into a Second Amended and Restated Credit Agreement
dated as of June 30, 1997 (as amended, supplemented or otherwise modified
through but not including the date hereof, the "Existing Credit Agreement").
(4) The Borrower is a direct, wholly owned Subsidiary (as
hereinafter defined) of AMF Group Holdings Inc., a Delaware corporation
("Holdings"), which is a direct, wholly owned Subsidiary of AMF Bowling, Inc.
(formerly known as AMF Holdings Inc.), a Delaware corporation ("Parent").
(5) Parent and Holdings were organized by GS Capital Partners
II, L.P., GS Capital Partners II Offshore, L.P. and ▇▇▇▇▇▇▇, Sachs & Co.
Verwaltungs GmbH (collectively, together with The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group L.P.,
Stone Street Fund 1995 L.P.,
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▇▇▇▇▇ ▇▇▇▇▇▇ Fund ▇▇▇▇ ▇.▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇ Fund 1995 L.P. and Bridge Street Fund
1996 L.P. and in each case any successor funds, the "Goldman Investors") to
acquire control, together with the other Equity Investors (as hereinafter
defined), of AMF Bowling, Inc., a Virginia corporation, AMF Bowling Centers,
Inc., a Virginia corporation, AMF Worldwide Bowling Centers Group and their
respective Subsidiaries (collectively, the "Company").
(6) Pursuant to the Stock Purchase Agreement dated February
16, 1996 (as amended, supplemented or otherwise modified in accordance with its
terms, to the extent permitted in accordance with the Loan Documents (as
hereinafter defined), the "Purchase Agreement") between Holdings and the Sellers
(as defined therein), Holdings proposed to acquire all of the outstanding common
stock of the Company (the "Stock Acquisition"), in the case of AMF Bowling and
AMF Bowling Centers (each as hereinafter defined), through two intermediate
holding company Subsidiaries (the "Intermediate Companies"), and to acquire from
the Retained Entities and WBB (each as defined in the Purchase Agreement)
certain assets (the "Asset Acquisition", and together with the Stock
Acquisition, the "Acquisition"). Immediately upon the consummation of the
Acquisition, one of the Intermediate Companies was merged into AMF Bowling and
the other Intermediate Company was merged into AMF Bowling Centers.
(7) On August 21, 1997, Parent filed a Form S-1 with the
Securities and Exchange Commission (the "Form S-1") in connection with an
initial public offering (the "IPO") of its common stock for gross cash proceeds
of up to $250,000,000. Parent will use the Net Cash Proceeds from the IPO to
make a capital contribution to the Borrower. The Borrower has requested that the
Existing Lenders and the Agents amend the Existing Credit Agreement in order to,
among other things, permit the Borrower to convert the outstanding Acquisition
Commitments and Acquisition B Commitments and certain outstanding Term Loan
Commitments (each as defined in the Existing Credit Agreement) into Working
Capital Commitments, prepay a portion of outstanding Working Capital Advances on
a temporary basis and prepay a portion of the Subordinated Notes (as hereinafter
defined).
(8) The Existing Lenders and the Agents have agreed to amend
and restate the Existing Credit Agreement on the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Acquisition" has the meaning specified in the Preliminary
Statements.
"Adjusted EBITDA" means, at any time, in the case of any New
Center, the product of (a) the Average EBITDA Margin calculated as of
the end of the fiscal quarter immediately preceding the fiscal quarter
in which the time of the acquisition or construction of such New Center
(within the meaning of the definition of "New Center" contained in this
Section 1.01) occurs and (b) the Specified Revenues of such New Center.
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with
Citibank at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Account No. 3885-8061, Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
"Advance" means a Term Loan Advance, an AXELs Series A
Advance, an AXELs Series B Advance, a Working Capital Advance or a
Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling," "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agents" has the meaning specified in the recital of parties
to this Agreement.
"AMF Bowling Centers" means AMF Bowling Centers, Inc., a
Virginia corporation and an indirect wholly owned Subsidiary of the
Borrower.
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"AMF Bowling Products" means AMF Bowling Products, Inc., a
Virginia corporation and an indirect wholly owned Subsidiary of the
Borrower.
"AMF Worldwide" means AMF Worldwide Bowling Centers Holdings
Inc., a Delaware corporation and an indirect wholly owned Subsidiary of
the Borrower.
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a
Base Rate Advance and such Lender Party's Eurodollar Lending Office in
the case of a Eurodollar Rate Advance.
"Applicable Margin" means (a) from the Fourth Closing Date
until the one-year anniversary of the Fourth Closing Date, a percentage
per annum determined by reference to the Total Debt/EBITDA Ratio as set
forth below:
-----------------------------------------------------------------------------------------------------
APPLICABLE
FACILITY TOTAL APPLICABLE MARGIN MARGIN FOR
DEBT/EBITDA FOR BASE RATE EURODOLLAR RATE
RATIO ADVANCES ADVANCES
-----------------------------------------------------------------------------------------------------
Working Capital Level I
Facility and Term less than or equal to 0.750% 1.750%
Loan Facility 5.50:1
Level II
greater than 5.50:1 0.875% 1.875%
-----------------------------------------------------------------------------------------------------
AXELs Series Level I
A Facility less than or equal to 1.000% 2.000%
5.50:1
Level II
greater than 5.50:1 1.125% 2.125%
-----------------------------------------------------------------------------------------------------
AXELs Series Level I
B Facility and New less than or equal to 1.250% 2.250%
AXELs Series B 5.50:1
Facility
Level II
greater than 5.50:1 1.375% 2.375%
-----------------------------------------------------------------------------------------------------
and (b) thereafter, a percentage per annum determined by reference to
the Total Debt/EBITDA Ratio as set forth below:
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===============================================================================================
APPLICABLE
FACILITY TOTAL APPLICABLE MARGIN MARGIN FOR
DEBT/EBITDA FOR BASE RATE EURODOLLAR RATE
RATIO ADVANCES ADVANCES
===============================================================================================
Working Level I
Capital Facility less than or equal 0.000% 0.750%
and Term Loan to 3.5:1
Facility
Level II
greater than 3.5:1 0.000% 1.000%
but less than or
equal to 4.25:1
Level III
greater than 4.25:1 0.500% 1.500%
but less than or
equal to 4.75:1
Level IV
greater than 4.75:1 0.750% 1.750%
but less than or
equal to 5.50:1
Level V
greater than 5.50:1 0.875% 1.875%
===============================================================================================
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================================================================================================
AXELs Series A Level I
Facility less than or equal 0.875% 1.875%
to 4.00:1
Level II
greater than 4.00:1
but less than or 1.000% 2.000%
equal to 5.50:1
Level III
greater than 5.50:1
1.125% 2.125%
================================================================================================
AXELs Series B Level I
Facility and New less than or equal 1.125% 2.125%
AXELs Series B to 4.00:1
Facility
Level II
greater than 4.00:1
but less than or 1.250% 2.250%
equal to 5.50:1
Level III
greater than 5.50:1
1.375% 2.375%
================================================================================================
The Applicable Margin for each Base Rate Advance shall be determined by
reference to the ratio in effect from time to time and the Applicable
Margin for each Eurodollar Rate Advance shall be determined by
reference to the ratio in effect on the first day of each Interest
Period for such Advance; provided, however, that (A) no change in the
Applicable Margin shall be effective until three Business Days after
the date on which the Administrative Agent receives the relevant
Financial Statements and a certificate of a Designated Financial
Officer demonstrating such ratio, and (B) the Applicable Margin shall
be at the numerically highest level then applicable for so long as the
Borrower has not submitted to the Administrative Agent the information
described in clause (A) of this proviso as and when required under
Section 5.03(b) or (c), as the case may be.
"Appropriate Lender" means, at any time, with respect to (a)
any of the Term Loan Facility, the AXELs Series A Facility or the
Working Capital Facility, a Lender
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that has a Commitment with respect to such Facility at such time, (b)
the AXELs Series B Facility, (i) on and prior to the making of the New
AXELs Series B Advances, an Existing AXELs Series B Lender or a New
AXELs Series B Lender, as the context may require, and (ii) thereafter,
an AXELs Series B Lender and (c) the Letter of Credit Facility, (i) any
Issuing Bank and (ii) if the other Working Capital Lenders have made
Letter of Credit Advances pursuant to Section 2.03(c) that are
outstanding at such time, each such other Working Capital Lender.
"Arrangers" has the meaning specified in the recital of
parties to this Agreement.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in accordance with Section 8.07 and in
substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"Average EBITDA Margin" means, at any time of determination,
an amount equal to (a) the sum of Consolidated EBITDA of AMF Bowling
Centers and its Subsidiaries and Consolidated EBITDA of AMF Worldwide
and its Subsidiaries divided by (b) the sum of Consolidated revenues of
AMF Bowling Centers and its Subsidiaries and Consolidated revenues of
AMF Worldwide and its Subsidiaries, in each case for the 12-month
period reflected in the most recent Financial Statements.
"AXELs Series A Advance" has the meaning specified in Section
2.01(b).
"AXELs Series A Borrowing" means a borrowing consisting of
simultaneous AXELs Series A Advances of the same Type made by the AXELs
Series A Lenders.
"AXELs Series A Commitment" means, with respect to any AXELs
Series A Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "AXELs Series A
Commitment" or, if such Lender has entered into one or more Assignments
and Acceptances, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 8.07(d) as such
Lender's "AXELs Series A Commitment", as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
"AXELs Series A Facility" means, at any time, the aggregate
amount of the AXELs Series A Lenders' AXELs Series A Commitments at
such time.
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"AXELs Series A Lender" means any Lender that has an AXELs
Series A Commitment.
"AXELs Series A Note" means a promissory note of the Borrower
payable to the order of any AXELs Series A Lender, in substantially the
form of Exhibit A-2 hereto, evidencing the indebtedness of the Borrower
to such Lender resulting from the AXELs Series A Advance made by such
Lender.
"AXELs Series B Advance" means any Existing AXELs Series B
Advance or any New AXELs Series B Advance.
"AXELs Series B Borrowing" means a borrowing consisting of
simultaneous AXELs Series B Advances of the same Type made by the AXELs
Series B Lenders.
"AXELs Series B Commitment" means an Existing AXELs Series B
Commitment or a New AXELs Series B Commitment.
"AXELs Series B Facility" means, at any time, the aggregate
amount of the AXELs Series B Lenders' AXELs Series B Commitments at
such time.
"AXELs Series B Lender" means any Existing AXELs Series B
Lender or any New AXELs Series B Lender.
"AXELs Series B Note" means a promissory note of the Borrower
payable to the order of any AXELs Series B Lender, in substantially the
form of Exhibit A-3 hereto, evidencing the indebtedness of the Borrower
to such Lender resulting from the AXELs Series B Advance made by such
Lender.
"Bank Hedge Agreement" means any Hedge Agreement required or
permitted under Article V that is entered into by and between the
Borrower and any Hedge Bank.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days)
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being determined weekly on each Monday (or, if such day is not
a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on
the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New
York or, if such publication shall be suspended or terminated,
on the basis of quotations for such rates received by Citibank
from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage
equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but
not limited to, any emergency, supplemental or other marginal
reserve requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities)
three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank
for determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of Citibank in
the United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"Blocked Accounts" has the meaning specified in the Security
Agreement.
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrower's Account" means the account of the Borrower
maintained by the Borrower with The Chase Manhattan Bank, N.A. at its
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No.
001-71281-9-01 or such other account of the Borrower maintained by the
Borrower in the United States as the Borrower shall designate in
writing to the Administrative Agent.
"Borrowing" means a Term Loan Borrowing, an AXELs Series A
Borrowing, an AXELs Series B Borrowing or a Working Capital Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings in U.S. dollar deposits are carried on in the London
interbank market.
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"Capital Expenditures" means, for any Person for any period,
the sum of (a) all expenditures made, directly or indirectly, by such
Person or any of its Subsidiaries during such period for equipment,
fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, that have been or should
be, in accordance with GAAP, reflected as additions to property, plant
or equipment on a Consolidated balance sheet of such Person or have a
useful life of more than one year plus (b) the aggregate principal
amount of all Debt (including Obligations under Capitalized Leases)
assumed or incurred in connection with any such expenditures; provided,
however, that the following shall in any event be excluded from the
definition of Capital Expenditures: any such expenditures made with, or
subsequently reimbursed out of, the proceeds of insurance, condemnation
awards (or payments in lieu thereof), indemnity payments or payments in
respect of judgments or settlements received from third parties for
purposes of replacing or repairing the assets in respect of which such
proceeds, awards or payments were received, so long as such
expenditures are commenced within 3 months of the later of the
occurrence of the damage to or loss of the assets being replaced or
repaired and the receipt of such proceeds, awards or payments in
respect thereof; provided further, however, that notwithstanding
anything contained herein, Capital Expenditures shall not include any
Investments.
"Capitalized Leases" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"Cash Collateral Account" has the meaning specified in the
Security Agreement.
"Cash Equivalents" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all
Liens other than Liens created under the Collateral Documents and
having a maturity of not greater than 90 days from the date of
acquisition thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States, (b) insured certificates
of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the
parent of which issues) commercial paper rated as described in clause
(c), is organized under the laws of the United States or any State
thereof and has combined capital and surplus of at least $1 billion,
(c) commercial paper in an aggregate amount of no more than $10,000,000
per issuer outstanding at any time, issued by any corporation organized
under the laws of any State of the United States and rated at least
"Prime-1" (or the then equivalent grade) by ▇▇▇▇▇'▇ Investors Service,
Inc. or "A-1" (or the then equivalent grade) by Standard & Poor's
Ratings Group or (d) Investments in money market funds that invest
primarily in Cash Equivalents of the types described in clauses (a),
(b) and (c) above.
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"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"Change of Control" means the occurrence of any of the
following: (a) at any time prior to an IPO, the Goldman Investors shall
at any time for any reason cease to own beneficially Voting Stock of
Parent representing 51% or more of the combined voting power of all
Voting Stock of Parent; (b) at any time after an IPO, the Goldman
Investors shall at any time for any reason cease to own beneficially
Voting Stock of Parent representing 35% or more of the combined voting
power of all Voting Stock of Parent; (c) at any time after an IPO, any
Person or two or more Persons acting in concert other than the Goldman
Investors shall have acquired at any time beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934), directly or indirectly, of
Voting Stock of Parent (or other securities convertible into such
Voting Stock) representing more of the combined voting power of all
Voting Stock of Parent than is beneficially owned by the Goldman
Investors at such time; (d) during any period of up to 24 consecutive
months, commencing after the First Closing Date, individuals who at the
beginning of such 24-month period were directors of Parent shall cease
for any reason to constitute a majority of the board of directors of
Parent (except to the extent that individuals who at the beginning of
such 24-month period were replaced by individuals (x) elected by a
majority of the remaining members of the board of directors of Parent
or (y) nominated for election by a majority of the remaining members of
the board of directors of Parent and thereafter elected as directors by
the shareholders of Parent); or (e) a "Change of Control" as defined in
the Senior Subordinated Notes Indenture or the Senior Subordinated
Discount Notes Indenture.
"China Joint Venture" means AMF Garden Hotel Bowling Center
Company, a company organized under the laws of the People's Republic of
China by AMF Bowling Centers (China) Company, a Subsidiary of the
Borrower, and the Guangzhou Garden Hotel.
"Citibank" has the meaning specified in the recital of parties
to this Agreement.
"Citicorp" has the meaning specified in the recital of parties
to this Agreement.
"Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Collateral Agent for the benefit
of the Secured Parties.
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"Collateral Agent" has the meaning specified in the recital of
parties to this Agreement.
"Collateral Documents" means the Security Agreement, the
Intellectual Property Security Agreement, the Mortgages and any other
agreement that creates or purports to create a Lien in favor of the
Collateral Agent for the benefit of the Secured Parties.
"Commitment" means a Term Loan Commitment, an AXELs Series A
Commitment, an AXELs Series B Commitment, a Working Capital Commitment
or a Letter of Credit Commitment.
"Company" has the meaning specified in the Preliminary
Statements.
"Confidential Information" means information that the Borrower
furnishes to any Agent or any Lender Party in a writing designated as
confidential but does not include any such information that is or
becomes generally available to the public other than as a result of a
breach by any Agent or any Lender Party of its obligations hereunder or
that is or becomes available to such Agent or such Lender Party from a
source other than the Borrower that is not, to the best of such Agent's
or such Lender Party's knowledge, acting in violation of a
confidentiality agreement with the Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.09 or 2.10.
"Current Assets" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"Current Liabilities" of any Person means (a) all Debt of such
Person that by its terms is payable on demand or matures within one
year after the date of determination (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year
from such date or arising under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period
of more than one year from such date), (b) all amounts of Funded Debt
of such Person required to be paid or prepaid within one year after
such date and (c) all other items (including taxes accrued as
estimated) that in accordance with GAAP would be classified as current
liabilities of such Person.
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"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of such Person's business), (c) all Obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations, contingent or otherwise, of such Person under acceptance,
letter of credit or similar facilities, (g) all Obligations, contingent
or otherwise, of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any capital stock of or other
ownership or profit interest in such Person or any other Person or any
warrants, rights or options to acquire such capital stock, valued, in
the case of Redeemable Preferred Stock, at the greater of its voluntary
or involuntary liquidation preference plus accrued and unpaid
dividends, (h) all Obligations of such Person in respect of Hedge
Agreements, (i) all Obligations of such Person in respect of long-term
non-competition agreements or arrangements, (j) all Debt of others
referred to in clauses (a) through (i) above or clause (k) below
guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an
agreement (i) to pay or purchase such Debt or to advance or supply
funds for the payment or purchase of such Debt, (ii) to purchase, sell
or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or
(iv) otherwise to assure a creditor against loss, and (k) all Debt
referred to in clauses (a) through (j) above of another Person secured
by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender
Party to the Borrower pursuant to Section 2.01 or 2.02 at or prior to
such time which has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(d) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.15(a), the
remaining
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portion of such Defaulted Advance shall be considered a Defaulted
Advance originally required to be made pursuant to Section 2.01 on the
same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to any
Agent or any other Lender Party hereunder or under any other Loan
Document at or prior to such time which has not been so paid as of such
time, including, without limitation, any amount required to be paid by
such Lender Party to (a) any Issuing Bank pursuant to Section 2.03(c)
to purchase a portion of a Letter of Credit Advance made by such
Issuing Bank, (b) the Administrative Agent pursuant to Section 2.02(d)
to reimburse the Administrative Agent for the amount of any Advance
made by the Administrative Agent for the account of such Lender Party,
(c) any other Lender Party pursuant to Section 2.13 to purchase any
participation in Advances owing to such other Lender Party and (d) any
Agent or any Issuing Bank pursuant to Section 7.05 to reimburse such
Agent or such Issuing Bank for such Lender Party's ratable share of any
amount required to be paid by the Lender Parties to such Agent or such
Issuing Bank as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.15(b), the
remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be paid hereunder or under any
other Loan Document on the same date as the Defaulted Amount so deemed
paid in part.
"Defaulting Lender" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(f).
"Designated Financial Officer" means any of the President or
Vice President-Finance of AMF Bowling Products or AMF Bowling Centers
or the chief financial officer of the Borrower.
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"EBITDA" means, for any Person, for any period, the sum,
determined on a Consolidated basis and without duplication, of (a) net
income (or net loss), (b) interest expense, (c) income tax expense, (d)
depreciation expense, (e) amortization expense, (f) the aggregate
amount of a one-time bonus and "phantom" stock payments (and payroll
taxes associated therewith) made, in each case, to employees, former
employees, former owners and former consultants of the Company and its
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Subsidiaries and the aggregate amount of professional and similar fees
incurred by the Sellers in connection with the Acquisition, provided
that, in each case, such amount shall have been funded by the Sellers
at or prior to the consummation of the Acquisition, (g) non-cash
foreign exchange losses, if any, (h) extraordinary or non-recurring
losses, if any, included in determining such net income (or net loss),
(i) non-cash expenses, if any, incurred in connection with the issuance
of warrants or other equity by such Person with respect to the
acquisition by the Borrower of MJ Golf, to the extent included in
determining such net income (or net loss), (j) other non-operating
expense, if any, included in determining such net income (or net loss)
and (k) Other Additions for such period, less the sum of (i) non-cash
foreign exchange gains, if any, (ii) extraordinary or non-recurring
gains, if any, included in determining such net income (or net loss),
and (iii) other non-operating income, if any, included in determining
such net income (or net loss), in each case of such Person and its
Subsidiaries, determined, except in the case of clause (j) above, in
accordance with GAAP for such period.
"EBITDA Adjustment Amount" means, at any time of
determination, an amount equal to 80% of the aggregate amount of the
EBITDA of each bowling center acquired or constructed by the Borrower
or any of its Subsidiaries after the First Closing Date and acquired or
constructed at least 15 months prior to such time of determination, as
reflected in the certificate most recently required to be furnished to
the Lender Parties pursuant to Section 5.03(b) or (c), as the case may
be, provided that for purposes hereof, the time of any such acquisition
shall be the date of consummation of such acquisition and the time of
any such construction shall be the date of the opening of such bowling
center for business.
"Eligible Assignee" means (a) with respect to any Facility
(other than the Letter of Credit Facility), (i) a Lender; (ii) an
Affiliate of a Lender; (iii) a commercial bank organized under the laws
of the United States, or any State thereof, and having a combined
capital and surplus of at least $500,000,000, in the case of the
Working Capital Facility, and at least $100,000,000, in the case of the
Term Loan Facility, the AXELs Series A Facility and the AXELs Series B
Facility; (iv) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having a
combined capital and surplus of at least $500,000,000, in the case of
the Working Capital Facility, and at least $100,000,000, in the case of
the Term Loan Facility, the AXELs Series A Facility and the AXELs
Series B Facility; (v) a commercial bank organized under the laws of
any other country that is a member of the OECD or has concluded special
lending arrangements with the International Monetary Fund associated
with its General Arrangements to Borrow, or a political subdivision of
any such country, and having a combined capital and surplus of at least
$500,000,000, in the case of the Working Capital Facility, and at least
$100,000,000, in the case of the Term Loan Facility, the AXELs Series A
Facility and the AXELs Series B Facility, so long as such bank is
acting through a branch or agency located in the United States; (vi)
the central bank of any country
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that is a member of the OECD; (vii) a finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary
course of its business and having a combined capital and surplus of at
least $500,000,000, in the case of the Working Capital Facility, and at
least $100,000,000, in the case of the Term Loan Facility, the AXELs
Series A Facility and the AXELs Series B Facility; and (viii) any other
Person approved by the Administrative Agent and the Borrower, such
approval not to be unreasonably withheld or delayed, and (b) with
respect to the Letter of Credit Facility, a Person that is an Eligible
Assignee under subclause (iii) or (v) of clause (a) of this definition
and is approved by the Administrative Agent and, so long as no Default
shall have occurred and be continuing, by the Borrower, such approval
not to be unreasonably withheld or delayed; provided, however, that
neither any Loan Party nor any Affiliate of a Loan Party shall qualify
as an Eligible Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement pursuant to any Environmental Law or any
Environmental Permit or relating to any Hazardous Material, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any applicable federal, state, local
or foreign statute, law, ordinance, rule, regulation, code, order,
writ, judgment, injunction, decree, judicial decision, or agency
interpretation, policy or guidance that has the force and effect of
law, relating to pollution or protection of the environment, public
health, safety or natural resources, including, without limitation,
those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization from any
governmental or regulatory authority required under any Environmental
Law.
"Equity Investors" means the Persons listed under the caption
"Equity Investors" on Schedule 4.01(a).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
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"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by any Loan Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for imposition of a lien under Section 302(f) of ERISA shall have been
met with respect to any Plan; (g) the adoption of an amendment to a
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum at which deposits in U.S. dollars are
offered by the principal office of Citibank in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
substantially
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equal to Citibank's Eurodollar Rate Advance comprising part of such
Borrowing to be outstanding during such Interest Period (or, if
Citibank shall not have such a Eurodollar Rate Advance, $1,000,000) and
for a period equal to such Interest Period by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means, for any Fiscal Year (which, in the
case of the Fiscal Year ending December 31, 1996, shall mean the period
from May 1, 1996 to December 31, 1996 for purposes of this definition),
determined in accordance with GAAP for the Borrower and its
Subsidiaries on a Consolidated basis and without duplication:
(a) Consolidated EBITDA of the Borrower and its
Subsidiaries for such Fiscal Year less (to the extent included
in the calculation of EBITDA) any Extraordinary Receipts
received by the Borrower or any of its Subsidiaries during
such Fiscal Year less extraordinary or non-recurring cash
losses in such Fiscal Year plus extraordinary or non-recurring
cash gains in such Fiscal Year, less
(b) the sum of
(i) Consolidated cash interest expense
payable by the Borrower and its Subsidiaries in such
Fiscal Year plus
(ii) the aggregate amount of Capital
Expenditures made pursuant to Section 5.02(q) by the
Borrower and its Subsidiaries during
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such Fiscal Year (but not exceeding the amount
permitted to be made in such Fiscal Year pursuant to
Section 5.02(q)) plus
(iii) optional prepayments and scheduled
payments of principal of Debt of the Borrower and its
Subsidiaries in such Fiscal Year (including, without
limitation, prepayments of the Working Capital
Facility to the extent that the Working Capital
Facility is permanently reduced) plus
(iv) cash taxes paid by the Borrower and its
Subsidiaries in such Fiscal Year plus
(c) if there was a net increase in Consolidated
Current Liabilities of the Borrower and its Subsidiaries
during such Fiscal Year, the amount of such net increase plus
(d) if there was a net decrease in Consolidated
Current Assets (excluding cash and Cash Equivalents) of the
Borrower and its Subsidiaries during such Fiscal Year, the
amount of such net decrease less
(e) if there was a net decrease in Consolidated
Current Liabilities of the Borrower and its Subsidiaries
during such Fiscal Year, the amount of such net decrease less
(f) if there was a net increase in Consolidated
Current Assets (excluding cash and Cash Equivalents) of the
Borrower and its Subsidiaries during such Fiscal Year, the
amount of such net increase less
(g) (i) for any Fiscal Year ending on or prior to
December 31, 1997, an amount equal to the product of (A) the
Support Amount for such Fiscal Year and (B) 0.803654, but not,
under this clause (g)(i), to exceed $14,063,946.68 in the
aggregate from and after the First Closing Date, and (ii) for
any Fiscal Year ending thereafter, zero.
"Excess Cash Flow Amount" means (a) for each of the first two
Fiscal Years ending after the First Closing Date, an amount equal to
the lesser of (i) the amount by which Excess Cash Flow for such Fiscal
Year exceeds $10,000,000 and (ii) an amount equal to 50% of Excess Cash
Flow for such Fiscal Year, (b) for the third Fiscal Year ending after
the First Closing Date, an amount equal to the lesser of (i) the amount
by which Excess Cash Flow for such Fiscal Year exceeds $20,000,000 and
(ii) an amount equal to 50% of Excess Cash Flow for such Fiscal Year
and
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(c) for each Fiscal Year ending thereafter, an amount equal to 50% of
Excess Cash Flow for such Fiscal Year.
"Existing Advance" means, for each Existing Lender, all of
such Existing Lender's rights in and to, and all of its obligations
under, the Advances (as defined in the Existing Credit Agreement)
evidenced by the Existing Notes and owing to it under the Existing
Credit Agreement immediately preceeding the Effective Date.
"Existing AXELs Series B Advance" has the meaning specified in
Section 2.01(c).
"Existing AXELs Series B Commitment" means, with respect to
any Existing AXELs Series B Lender at any time, the amount set forth
opposite such Lender's name on Schedule I hereto under the caption
"Existing AXELs Series B Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to
Section 8.07(d) as such Lender's "Existing AXELs Series B Commitment",
as such amount may be reduced at or prior to such time pursuant to
Section 2.05.
"Existing AXELs Series B Lender" means any Lender that has an
Existing AXELs Series B Commitment.
"Existing Commitment" means, for each Existing Lender, all of
such Existing Lender's rights in and to, and all of its obligations
under, the Commitment (as defined in the Existing Credit Agreement)
held by it under the Existing Credit Agreement immediately preceeding
the Effective Date.
"Existing Debt" means Debt of the Company and its Subsidiaries
outstanding immediately before giving effect to the Acquisition.
"Existing Lenders" has the meaning specified in the
Preliminary Statements hereto.
"Existing Notes" means the Notes as defined in, and issued
pursuant to, the Existing Credit Agreement.
"Extraordinary Receipt" means any cash received by or paid to
or for the account of any Person consisting of tax refunds, pension
plan reversions, proceeds of insurance (other than proceeds of business
interruption insurance to the extent such proceeds constitute
compensation for lost earnings), condemnation awards (and payments in
lieu thereof), indemnity payments and payments in respect of judgments
(including, without limitation, punitive damages); provided, however,
that an
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Extraordinary Receipt shall not include cash receipts received from
proceeds of insurance, condemnation awards (or payments in lieu
thereof), indemnity payments or payments in respect of judgments or
settlements (i) to the extent that such proceeds, awards or payments in
respect of loss or damage to equipment, fixed assets or real property
are applied to replace or repair such equipment, fixed assets or real
property to the extent such replacement or repair is not prohibited
under the terms of the Collateral Documents, so long as such
application is commenced within 3 months after the later of the
occurrence of such loss or damage and the receipt of such proceeds,
awards or payments in respect thereof or (ii) to the extent that such
proceeds, awards or payments reimburse such Person for the prior
payment of out-of-pocket costs.
"Facility" means the Term Loan Facility, the AXELs Series A
Facility, the AXELs Series B Facility, the Working Capital Facility or
the Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Financial Statements" means, at any time, the most recent
financial statements furnished, or required to be furnished, by the
Borrower to the Lender Parties pursuant to Section 5.03(b) or (c), as
the case may be.
"First Amendment" means Amendment No. 3 to the Original Credit
Agreement dated as of December 20, 1996 among the Borrower, the Lenders
parties thereto and the Agents, and the Consent thereto dated as of
December 20, 1996 by the Loan Parties (other than the Borrower).
"First Amendment Documents" means (a) the First Amendment, (b)
the AXELs Series B Notes payable to the New AXELs Series B Lenders and
(c) the First Mortgage Amendments, in each case as amended,
supplemented or otherwise modified from time to time.
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"First Closing Date" means May 1, 1996, the date on which the
Initial Extension of Credit occurred following satisfaction or waiver
of the conditions set forth in Sections 3.01 and 3.02.
"First Mortgage Amendments" means the mortgage amendments
executed in connection with the First Amendment.
"First Prepayment Date" has the meaning specified in Section
2.06(b)(iv).
"Fiscal Year" means (except as otherwise stated in the
definition of Excess Cash Flow in this Section 1.01 and in Section
5.02(q)) a fiscal year of the Borrower and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
"Foreign Subsidiary" means a Subsidiary of the Borrower
organized under the laws of a country other than the United States or
any State thereof.
"Form S-1" has the meaning specified in the Preliminary
Statements.
"Fourth Closing Date" means the first date on which the
conditions set forth in Section 3.05 have been satisfied but in no
event later than November 30, 1997.
"Funded Debt" of any Person means Debt in respect of the
Advances, in the case of the Borrower, and all other Debt of such
Person that by its terms matures more than one year after the date of
its creation or matures within one year from such date but is renewable
or extendible, at the option of such Person, to a date more than one
year after such date or arises under a revolving credit or similar
agreement that obligates the lender or lenders to extend credit during
a period of more than one year after such date, including, without
limitation, all amounts of Funded Debt of such Person required to be
paid or prepaid within one year after the date of determination.
"GAAP" has the meaning specified in Section 1.03.
"▇▇▇▇▇▇▇" has the meaning specified in the recital of parties
to this Agreement.
"▇▇▇▇▇▇▇ Investors" has the meaning specified in the
Preliminary Statements.
"Gross Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset or the sale or issuance of
any Debt or capital stock or other ownership or profit interest, any
securities convertible into or exchangeable for capital stock or other
ownership or profit interest or any warrants, rights, options or other
securities to acquire capital stock or other ownership or profit
interest by any
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Person, or any Extraordinary Receipt received by or paid to or for the
account of any Person, the aggregate amount of cash proceeds receivable
(whether as initial consideration or through payment or disposition of
deferred consideration) by or on behalf of such Person in connection
with such transaction, prior to deduction for brokerage commissions,
underwriting fees, legal fees, finder's fees and other similar fees and
commissions, discounts and other expenses.
"Guaranties" means the Holdings Guaranty, the Subsidiary
Guaranty and any other guaranty delivered pursuant to Section 5.01(n).
"Guarantors" means Holdings and the Subsidiary Guarantors.
"Hazardous Materials" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Hedge Bank" means any Lender Party or any of its Affiliates
in its capacity as a party to a Bank Hedge Agreement.
"Holdings" has the meaning specified in the Preliminary
Statements.
"Holdings Guaranty" has the meaning specified in Section
3.01(p)(x).
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Information Memorandum" means collectively, the information
memorandum dated February 1996 and the information memorandum dated
August, 1997, each relating to the Borrower and the Company and used by
the Arrangers and the Syndication Agent in connection with the original
syndication of the Commitments and the Third Amendment, respectively,
each as amended or supplemented from time to time in writing.
"Initial Extension of Credit" means the earlier to occur of
the initial Borrowing and the initial issuance of a Letter of Credit
under the Original Credit Agreement.
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"Initial Issuing Banks" has the meaning specified in the
recital of parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Intellectual Property Security Agreement" has the meaning
specified in Section 3.01(p)(viii).
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under a Facility
that ends after any principal repayment installment date for
such Facility unless, after giving effect to such selection,
the aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on
or prior to such principal repayment installment date for such
Facility shall be at least equal to the aggregate principal
amount of Advances under such Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
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Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Inventory" has the meaning specified in the Security
Agreement.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or other
ownership or profit interest, warrants, rights, options, obligations or
other securities or all or substantially all of the assets of such
Person, any capital contribution to such Person or any other direct or
indirect investment in such Person, including, without limitation, any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clause (j) or (k) of the definition of "Debt" in respect
of such Person, any acquisition by way of a merger or consolidation and
any purchase or other acquisition or construction of bowling centers.
"IPO" has the meaning specified in the Preliminary Statements.
"Issuing Banks" means each Initial Issuing Bank, any other
Working Capital Lender that has a Letter of Credit Commitment set forth
opposite its name on Schedule I hereto, any other Working Capital
Lender approved as an Issuing Bank by the Administrative Agent and, so
long as no Default shall have occurred and be continuing, by the
Borrower (such approval not to be unreasonably withheld or delayed) and
each Eligible Assignee to which a Letter of Credit Commitment hereunder
has been assigned pursuant to Section 8.07 so long as each such Working
Capital Lender or Eligible Assignee expressly agrees to perform in
accordance with their terms all of the obligations that by the terms of
this Agreement are required to be performed by it as an Issuing Bank
and notifies the Administrative Agent of its Applicable Lending Office
and the amount of its Letter of Credit Commitment (which information
shall be recorded by the Administrative Agent in the Register).
"L/C Cash Collateral Account" has the meaning specified in the
Security Agreement.
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"L/C Related Documents" has the meaning specified in Section
2.04(e)(ii).
"Lender Party" means any Lender or any Issuing Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 8.07.
"Letter of Credit Advance" means an advance made by any
Issuing Bank or any Working Capital Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means, with respect to any
Issuing Bank at any time, the amount set forth opposite such Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if such Issuing Bank has entered into one or more
Assignments and Acceptances, set forth for such Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section
8.07(d) as such Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"Letter of Credit Facility" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the Issuing Banks'
Letter of Credit Commitments at such time and (b) $10,000,000, as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"Letters of Credit" has the meaning specified in Section
2.01(e).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Loan Documents" means (a) for purposes of this Agreement and
the Notes and any amendment or modification hereof or thereof and for
all other purposes other than for purposes of the Guaranties and the
Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) the
Guaranties, (iv) the Collateral Documents, (v) the First Amendment
Documents, (vi) the Second Amendment Documents, (vii) the Third
Amendment Documents and (viii) each Letter of Credit Agreement and (b)
for purposes of the Guaranties and the Collateral Documents, (i) this
Agreement, (ii) the Notes, (iii) the Guaranties, (iv) the Collateral
Documents, (v) the First Amendment Documents, (vi) the Second Amendment
Documents, (vii) the Third Amendment Documents, (viii) each Letter of
Credit Agreement and (ix) each Bank Hedge
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Agreement, in each case as amended, supplemented or otherwise modified
from time to time.
"Loan Parties" means the Company, the Borrower and the
Guarantors.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of Holdings or the Borrower, in
each case together with its respective Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of Holdings or the Borrower, in
each case together with its respective Subsidiaries, taken as a whole,
(b) the rights and remedies of any Agent or any Lender Party under any
Loan Document or Related Document or (c) the ability of any Loan Party
to perform its Obligations under any Loan Document (excluding Mortgages
covering Collateral which, in the aggregate, is immaterial) or Related
Document to which it is or is to be a party.
"Material Subsidiary" means, at any time, a Subsidiary of the
Borrower having at least 5% of the total Consolidated assets of the
Borrower and its Subsidiaries (determined as of the last day of the
most recent fiscal quarter of the Borrower) or at least 5% of the total
Consolidated revenues or net income of the Borrower and its
Subsidiaries for the 12-month period ending on the last day of the most
recent fiscal quarter of the Borrower; provided, however, that any
Subsidiary formed or acquired after the last day of the most recent
fiscal quarter of the Borrower that would have been a Material
Subsidiary if it had been formed or acquired on or prior to the last
day of such fiscal quarter shall be a Material Subsidiary for purposes
hereof from and after the date of its formation or acquisition.
"MJ Golf" means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Golf, Inc., a Delaware
corporation.
"Modified Consolidated EBITDA" means, for any Rolling Period,
Consolidated EBITDA of the Borrower and its Subsidiaries for such
Rolling Period, provided, however, that at any time of determination,
(i) solely with respect to any constructed New Center, Modified
Consolidated EBITDA shall be calculated using Adjusted EBITDA of such
New Center and (ii) solely with respect to any New Center acquired
within the immediately preceding 15 months, Modified Consolidated
EBITDA shall be calculated using the actual EBITDA of such New Center
for such
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Rolling Period (including, without limitation, for any portion of such
Rolling Period that is prior to the date of acquisition of such New
Center).
"Mortgage Policy" has the meaning specified in Section
3.01(p)(ix).
"Mortgages" has the meaning specified in Section 3.01(p)(ix).
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, that is subject to ERISA and to which any
Loan Party or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that is subject to ERISA and
that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and at least one Person other than the Loan Parties and the
ERISA Affiliates or (b) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset or the sale or issuance of
any Debt or capital stock or other ownership or profit interest, any
securities convertible into or exchangeable for capital stock or other
ownership or profit interest or any warrants, rights, options or other
securities to acquire capital stock or other ownership or profit
interest by any Person, or any Extraordinary Receipt received by or
paid to or for the account of any Person, the aggregate amount of cash
received from time to time (whether as initial consideration or through
payment or disposition of deferred consideration) by or on behalf of
such Person in connection with such transaction after deducting
therefrom only (without duplication) (a) reasonable and customary
brokerage commissions, underwriting fees and discounts, legal fees,
finder's fees and other similar fees and commissions and other
reasonable and customary expenses incurred in connection with such
transaction and (b) the amount of taxes payable in connection with or
as a result of such transaction, in each case to the extent, but only
to the extent, that the amounts so deducted are, at or prior to the
time of receipt of such cash, actually paid or payable to a Person that
is not an Affiliate of such Person or any Loan Party or any Affiliate
of any Loan Party and are properly attributable to such transaction or
to the asset that is the subject thereof; provided, however, that in
the case of taxes that are deductible under clause (b) but for the fact
that at the time of receipt of such cash, such taxes have not been
actually paid or are not then payable, such Person may deduct an amount
(the "Reserved Amount") equal to the amount reserved in
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29
accordance with GAAP for such Person's reasonable estimate of such
taxes, other than taxes for which such Person is indemnified, provided
further, however, that at the time such taxes are paid, the Borrower
shall prepay the Advances outstanding hereunder, in accordance with the
terms of Section 2.06(b)(ii), in an amount equal to the amount, if any,
by which the Reserved Amount exceeds the amount of taxes actually paid.
"New AXELs Series B Advance" has the meaning specified in
Section 2.01(c).
"New AXELs Series B Commitment" means, with respect to any New
AXELs Series B Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "New AXELs Series
B Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(d) as
such Lender's "New AXELs Series B Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"New AXELs Series B Lender" means any Lender that has a New
AXELs Series B Commitment.
"New Center" means, at any time of determination, any bowling
center acquired (whether by means of a stock or asset acquisition) or
constructed by the Borrower or any of its Subsidiaries after the First
Closing Date and less than 15 months prior to such date of
determination, provided that for purposes hereof, the time of any such
acquisition shall be the date of consummation of such acquisition and
the time of any such construction shall be the date of the opening of
such bowling center for business.
"Note" means a Term Loan Note, an AXELs Series A Note, an
AXELs Series B Note or a Working Capital Note.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or
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30
unsecured, and whether or not such claim is discharged, stayed or
otherwise affected by any proceeding referred to in Section 6.01(f).
Without limiting the generality of the foregoing, the Obligations of
the Loan Parties under the Loan Documents include (a) the obligation to
pay principal, interest, Letter of Credit commissions, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and
other amounts payable by any Loan Party under any Loan Document and (b)
the obligation of any Loan Party to reimburse any amount in respect of
any of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"Open Year" has the meaning specified in Section 4.01(bb).
"Other Additions" means, for any fiscal quarter of the
Borrower, (a) during the period from the First Closing Date through
December 31, 1997, an amount equal to the sum of (i) the Support Amount
for such fiscal quarter and (ii) extraordinary, unusual or
non-recurring, or expected to be non-recurring, expenses and expenses
resulting from changes in the Borrower's accounting or management
policies or practices, in each case of the Borrower and its
Subsidiaries for such fiscal quarter, all as determined in the judgment
of a Designated Financial Officer, in an aggregate amount, under this
clause (ii), not to exceed $20,000,000 from and after the First Closing
Date, and (b) thereafter, zero.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Parent" has the meaning specified in the Preliminary
Statements.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"Permitted Encumbrances" means, with respect to any real
property, minor survey exceptions, minor title irregularities,
easements, rights-of-way, restrictions and other similar charges or
encumbrances not interfering with the ordinary conduct of the business
of the Loan Parties and their Subsidiaries which were not incurred in
connection with and do not secure Debt or other extensions of credit
and which do not individually or in the aggregate materially adversely
affect the value of the properties of the Loan Parties and their
Subsidiaries taken as a whole or materially impair its use, taken as a
whole with all other properties of the Loan Parties and their
Subsidiaries, in the operation of the business of the Loan Parties and
their Subsidiaries.
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"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b); (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', landlords', workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 30 days or
are being contested in good faith by proper proceedings and as to which
appropriate reserves are being maintained; (c) pledges or deposits to
secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations; and (d)
Permitted Encumbrances, provided, however, that no Lien in favor of the
PBGC shall, in any event, be a Permitted Lien.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Play Center Joint Venture" means AMF Play Center S.A., a
corporation organized under the laws of Brazil, and its successors and
Subsidiaries, 50% of the Voting Stock of which corporation is to be
owned directly or indirectly by the Borrower.
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by such
corporation upon any distribution of such corporation's assets, whether
by dividend or upon liquidation.
"Pro Rata Share" of any amount means with respect to any
Working Capital Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such Lender's Working
Capital Commitment at such time and the denominator of which is the
Working Capital Facility at such time.
"Purchase Agreement" has the meaning specified in the
Preliminary Statements.
"Redeemable" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any
such right or Obligation that (a) the issuer has undertaken to redeem
at a fixed or determinable date or dates,
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whether by operation of a sinking fund or otherwise, or upon the
occurrence of a condition not solely within the control of the issuer
or (b) is redeemable at the option of the holder.
"Reduction Amount" has the meaning specified in Section
2.06(b)(vii).
"Register" has the meaning specified in Section 8.07(d).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Related Documents" means the Purchase Agreement, the
Subordinated Debt Documents, the Tax Agreement, the Stockholders'
Agreement and the Support Agreement.
"Required Lenders" means, at any time, (i) Lenders owed or
holding at least a majority in interest of the sum of (a) the aggregate
principal amount of the Term Loan Advances and Working Capital Advances
outstanding at such time, (b) the aggregate Available Amount of all
Letters of Credit outstanding at such time, (c) the aggregate unused
Commitments under the Term Loan Facility at such time and (d) the
aggregate Unused Working Capital Commitments at such time and (ii)
Lenders owed or holding at least a majority in interest of the sum of
(a) the aggregate principal amount of the AXELs Series A Advances and
AXELs Series B Advances outstanding at such time and (b) the aggregate
unused Commitments under the AXELs Series A Facility and AXELs Series B
Facility at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (A) the aggregate
principal amount of the Advances owing to such Lender (in its capacity
as a Lender) and outstanding at such time, (B) such Lender's Pro Rata
Share of the aggregate Available Amount of all Letters of Credit
outstanding at such time, (C) the aggregate unused Term Loan, AXELs
Series A and AXELs Series B Commitments of such Lender at such time and
(D) the Unused Working Capital Commitment of such Lender at such time.
For purposes of this definition, the aggregate principal amount of
Letter of Credit Advances owing to any Issuing Bank and the Available
Amount of each Letter of Credit shall be considered to be owed to the
Working Capital Lenders ratably in accordance with their respective
Working Capital Commitments.
"Responsible Officer" means any officer of any Loan Party or
any of its Subsidiaries.
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"Rolling Period" means, with respect to any fiscal quarter of
the Borrower and its Subsidiaries, such fiscal quarter and the three
consecutive immediately preceding fiscal quarters.
"Second Amendment" means Amendment No. 2 to the Second Credit
Agreement dated as of June 30, 1997 among the Borrower, the Lenders
parties thereto and the Agents, and the Consent thereto dated as of
June 30, 1997 by the Loan Parties (other than the Borrower).
"Second Amendment Documents" means (a) the Second Amendment,
(b) the Notes executed in connection therewith and (c) the Second
Mortgage Amendments, in each case as amended, supplemented or otherwise
modified from time to time.
"Second Closing Date" means the date on which the New AXELs
Series B Advances are made by the New AXELs Series B Lenders following
satisfaction or waiver of the conditions set forth in Sections 3.02 and
3.04.
"Second Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Second Mortgage Amendments" means the mortgage amendments
executed in connection with the Second Amendment.
"Second Prepayment Date" has the meaning specified in Section
2.06(b)(iv).
"Secured Parties" means the Arrangers, the Agents, the Lender
Parties and the Hedge Banks.
"Security Agreement" has the meaning specified in Section
3.01(p)(vii).
"Sellers" has the meaning specified in the Preliminary
Statements.
"Senior Subordinated Discount Notes" means the senior
subordinated discounted notes of the Borrower in an aggregate principal
amount of $452,000,000 issued pursuant to the Senior Subordinated
Discount Notes Indenture.
"Senior Subordinated Discount Notes Indenture" means the
Indenture dated as of March 21, 1996 among the Borrower, the guarantors
party thereto and American Bank National Association, as Trustee,
pursuant to which the Senior Subordinated Discount Notes are issued, as
amended, supplemented or otherwise modified from time to time in
accordance with its terms, to the extent permitted in accordance with
the Loan Documents.
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"Senior Subordinated Notes" means the senior subordinated
notes of the Borrower in an aggregate principal amount of $250,000,000
issued pursuant to the Senior Subordinated Notes Indenture.
"Senior Subordinated Notes Indenture" means the Indenture
dated as of March 21, 1996 among the Borrower, the guarantors party
thereto and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as Trustee, pursuant to
which the Senior Subordinated Notes are issued, as amended,
supplemented or otherwise modified from time to time in accordance with
its terms, to the extent permitted in accordance with the Loan
Documents.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that is subject to ERISA and
that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and no Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained and in respect of which any Loan
Party or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"Specified Revenues" means at any time (a) in the case of any
acquisition of a New Center, aggregate revenues of such New Center for
the immediately preceding 12-month period, and (b) in the case of any
construction of a New Center, an amount equal to (i) at any time during
its first 12 full months of operations, the aggregate revenues of such
New Center for each full month it has operated times twelve divided by
the number of full months such New Center has operated and (ii) at any
time thereafter, aggregate revenues of such New Center for the
immediately preceding 12-month period.
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"Standby Letter of Credit" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"Stockholders' Agreement" means the Stockholders' Agreement
set forth on Schedule III hereto, as amended, supplemented or otherwise
modified from time to time in accordance with its terms, to the extent
permitted in accordance with the Loan Documents.
"Subordinated Debt" means the Subordinated Notes and any other
Debt of any Loan Party that is subordinated to the Obligations of such
Loan Party under the Loan Documents on, and that otherwise contains,
terms and conditions satisfactory to the Required Lenders.
"Subordinated Debt Documents" means the Subordinated Notes
Indentures and all other agreements, indentures and instruments
pursuant to which Subordinated Debt is issued.
"Subordinated Notes" means the Senior Subordinated Notes and
the Senior Subordinated Discount Notes.
"Subordinated Notes Indentures" means the Senior Subordinated
Notes Indenture and the Senior Subordinated Discount Notes Indenture.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Subsidiary Guarantors" means the Subsidiaries of the Borrower
listed on Schedule II hereto and each other Subsidiary of the Borrower
that shall be required to execute and deliver a guaranty pursuant to
Section 5.01(n).
"Subsidiary Guaranty" has the meaning specified in Section
3.01(p)(xi).
"Support Agreement" means the letter agreement dated April 11,
1996 between the Sellers and Holdings, as amended, supplemented or
otherwise modified
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from time to time in accordance with its terms, to the extent
permitted in accordance with the Loan Documents.
"Support Amount" means, for any period, the amount that, in the
judgment of a Designated Financial Officer, would have been payable to the
Borrower by the Sellers during such period pursuant to the Support
Agreement if the Support Agreement were then still in effect, provided,
however, that the aggregate of such amounts shall not in any event exceed
$17,500,000 from and after the First Closing Date.
"Surviving Debt" has the meaning specified in Section 3.01(e).
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
"Tax Agreement" means the Tax Allocation Agreement dated as of May
1, 1996 among Parent, the Borrower and the Borrower's Subsidiaries (other
than Foreign Subsidiaries), as amended, supplemented or otherwise modified
from time to time in accordance with its terms, to the extent permitted in
accordance with the Loan Documents.
"Tax Certificate" has the meaning specified in Section 5.03(o).
"Taxes" has the meaning specified in Section 2.12(a).
"Term Facilities" means the Term Loan Facility, the AXELs Series A
Facility and the AXELs Series B Facility.
"Term Loan Advance" has the meaning specified in Section 2.01(a).
"Term Loan Borrowing" means a borrowing consisting of simultaneous
Term Loan Advances of the same Type made by the Term Loan Lenders.
"Term Loan Commitment" means, with respect to any Term Loan Lender
at any time, the amount set forth opposite such Lender's name on Schedule
I hereto under the caption "Term Loan Commitment" or, if such Lender has
entered into one or more Assignments and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 8.07(d) as such Lender's "Term Loan Commitment", as such amount
may be reduced at or prior to such time pursuant to Section 2.05.
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"Term Loan Facility" means, at any time, the aggregate amount of the
Term Loan Lenders' Term Loan Commitments at such time.
"Term Loan Lender" means any Lender that has a Term Loan
Commitment.
"Term Loan Note" means a promissory note of the Borrower payable to
the order of any Term Loan Lender, in substantially the form of Exhibit
A-1 hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from the Term Loan Advance made by such Lender.
"Termination Date" means (a) with respect to the Term Loan Facility,
the Working Capital Facility and the Letter of Credit Facility, the
earlier of March 31, 2002 and the date of termination in whole of the Term
Loan Commitments, the Working Capital Commitments and the Letter of Credit
Commitments pursuant to Section 2.05 or 6.01, (b) with respect to the
AXELs Series A Facility, the earlier of March 31, 2003 and the date of
termination in whole of the AXELs Series A Commitments pursuant to Section
2.05 or 6.01 and (c) with respect to the AXELs Series B Facility, the
earlier of March 31, 2004 and the date of termination in whole of the
AXELs Series B Commitments pursuant to Section 2.05 or 6.01.
"Third Amendment" means Amendment No. 1 dated November 3, 1997 to
the Existing Credit Agreement among the Borrower, the Lenders parties
thereto and the Agents, and the Consent thereto dated as of November 3,
1997 by the Loan Parties (other than the Borrower).
"Third Amendment Documents" means (a) the Third Amendment, (b) the
Working Capital Notes issued pursuant to Section 3.05(f)(i) and (c) the
Third Mortgage Amendments.
"Third Closing Date" means June 30, 1997.
"Third Mortgage Amendments" means the mortgage amendments, if any,
executed in connection with the Third Amendment.
"Total Debt/EBITDA Ratio" means, at any date of determination, the
ratio of Consolidated total Debt (other than Hedge Agreements) of the
Borrower and its Subsidiaries as at the end of the immediately preceding
Rolling Period to Modified Consolidated EBITDA of the Borrower and its
Subsidiaries for such Rolling Period.
"Trade Letter of Credit" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of
Inventory to the Borrower or any of its Subsidiaries to effect payment for
such Inventory, the conditions to drawing
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under which include the presentation to the Issuing Bank that issued such
Letter of Credit of negotiable bills of lading, invoices and related
documents sufficient, in the judgment of such Issuing Bank, to create a
valid and perfected lien on or security interest in such Inventory, bills
of lading, invoices and related documents in favor of such Issuing Bank.
"Type" refers to the distinction between Advances bearing interest
at the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unused Working Capital Commitment" means, with respect to any
Working Capital Lender at any time, (a) such Lender's Working Capital
Commitment at such time minus (b) the sum of (i) the aggregate principal
amount of all Working Capital Advances and Letter of Credit Advances made
by such Lender (in its capacity as a Lender) and outstanding at such time,
plus (ii) such Lender's Pro Rata Share of (A) the aggregate Available
Amount of all Letters of Credit outstanding at such time and (B) the
aggregate principal amount of all Letter of Credit Advances made by the
Issuing Banks pursuant to Section 2.03(c) and outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA, that is subject to ERISA and is maintained for employees of any
Loan Party or in respect of which any Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
"Working Capital Advance" has the meaning specified in Section
2.01(d).
"Working Capital Borrowing" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by the Working
Capital Lenders.
"Working Capital Commitment" means, with respect to any Working
Capital Lender at any time, the amount set forth opposite such Lender's
name on Schedule I hereto under the caption "Working Capital Commitment"
or, if such Lender has entered into one or more Assignments and
Acceptances, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as
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such Lender's "Working Capital Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
"Working Capital Facility" means, at any time, the aggregate amount
of the Working Capital Lenders' Working Capital Commitments at such time.
"Working Capital Lender" means any Lender that has a Working
Capital Commitment.
"Working Capital Note" means a promissory note of the Borrower
payable to the order of any Working Capital Lender, in substantially the
form of Exhibit A-4 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Working Capital Advances made
by such Lender.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(f) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) The Term Loan Advances. Each Term
Loan Lender severally agrees, on the terms and conditions hereinafter set forth,
to make a single advance (a "Term Loan Advance") to the Borrower on the First
Closing Date in an amount not to exceed such Lender's Term Loan Commitment at
such time. The Term Loan Borrowing shall consist of Term Loan Advances made
simultaneously by the Term Loan Lenders ratably according to their Term Loan
Commitments. Amounts borrowed under this Section 2.01(a) and repaid or prepaid
may not be reborrowed.
(b) The AXELs Series A Advances. Each AXELs Series A Lender
severally agrees, on the terms and conditions hereinafter set forth, to make a
single advance (an "AXELs Series A Advance") to the Borrower on the First
Closing Date in an amount not to exceed such Lender's AXELs Series A Commitment
at such time. The AXELs Series A
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Borrowing shall consist of AXELs Series A Advances made simultaneously by the
AXELs Series A Lenders ratably according to their AXELs Series A Commitments.
Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be
reborrowed.
(c) The AXELs Series B Advances. (i) Each Existing AXELs Series B
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make a single advance (an "Existing AXELs Series B Advance") to the Borrower on
the First Closing Date in an amount not to exceed such Lender's Existing AXELs
Series B Commitment at such time. The AXELs Series B Borrowing made on the First
Closing Date shall consist of Existing AXELs Series B Advances made
simultaneously by the Existing AXELs Series B Lenders ratably according to their
Existing AXELs Series B Commitments.
(ii) Each New AXELs Series B Lender severally agrees, on the terms
and conditions hereinafter set forth, to make a single advance (a "New AXELs
Series B Advance") to the Borrower on the Second Closing Date in an amount not
to exceed such Lender's New AXELs Series B Commitment at such time. The AXELs
Series B Borrowing made on the Second Closing Date shall consist of New AXELs
Series B Advances made simultaneously by the New AXELs Series B Lenders ratably
according to their New AXELs Series B Commitments. On the Second Closing Date,
all Existing AXELs Series B Advances then outstanding shall automatically
Convert to Advances with Interest Periods ending on the same day or days as the
Interest Period or Periods selected by the Borrower for the New AXELs Series B
Advances, in such amounts such that after giving effect to such Conversion,
AXELs Series B Advances comprising part of the same Borrowing shall be owing to
the AXELs Series B Lenders ratably according to their AXELs Series B
Commitments. The Borrower shall, on the Second Closing Date, pay any amounts
owing pursuant to Section 8.04(c) as a result of such Conversion.
(iii) Amounts borrowed under this Section 2.01(c) and repaid or
prepaid may not be reborrowed.
(d) The Working Capital Advances. (i) Effective as of the Fourth
Closing Date, all Acquisition Advances and Acquisition B Advances (each as
defined in the Existing Credit Agreement) outstanding under the Existing Credit
Agreement and all but $130,000,000 of the Term Loan Advances (as defined in the
Existing Credit Agreement) outstanding under the Existing Credit Agreement (the
aggregate amount of all such Advances less the aggregate amount of Advances
prepaid pursuant to Section 2.06(b)(ii)(B) being the "Outstanding Amount") shall
automatically be converted into Working Capital Advances hereunder and paid in
full as hereinafter set forth. In connection therewith, on the Fourth Closing
Date, each Working Capital Lender shall, in accordance with Section 2.02(a),
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's Pro Rata Share of the Outstanding Amount. Promptly upon the
Administrative Agent's receipt of the funds
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referred to in the immediately preceding sentence, the Administrative Agent
shall cause to be distributed like funds to prepay the Acquisition Lenders, the
Acquisition B Lenders and the Term Lenders (each as defined in the Existing
Credit Agreement) in such amounts as may be necessary such that after giving
effect thereto, the Working Capital Advances that were, prior to conversion in
accordance with the first sentence of this Section 2.01(d)(i), Acquisition
Advances, Acquisition B Advances and Term Loan Advances shall have been paid in
full. The Borrower shall, on the Fourth Closing Date, pay any amounts owing
pursuant to Section 8.04(c) as a result of such prepayment.
(ii) Each Working Capital Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (each a "Working Capital
Advance") to the Borrower from time to time on any Business Day during the
period from the First Closing Date until the Termination Date in an amount for
each such Advance not to exceed such Lender's Unused Working Capital Commitment
at such time (subject, however, to the terms of Section 2.01(f)). Each Working
Capital Borrowing shall be in an aggregate amount of $1,000,000 or an integral
multiple of $500,000 in excess thereof and shall consist of Working Capital
Advances made simultaneously by the Working Capital Lenders ratably according to
their Working Capital Commitments. Within the limits of each Working Capital
Lender's Unused Working Capital Commitment in effect from time to time, the
Borrower may borrow under this Section 2.01(d)(ii), prepay pursuant to Section
2.06(a) and reborrow under this Section 2.01(d)(ii).
(e) Letters of Credit. Each Issuing Bank severally agrees, on the
terms and conditions hereinafter set forth, to issue (or cause its Affiliate to
issue on its behalf) letters of credit (the "Letters of Credit") for the account
of the Borrower from time to time on any Business Day during the period from the
First Closing Date until 60 days before the Termination Date (i) in an aggregate
Available Amount for all Letters of Credit issued by such Issuing Bank not to
exceed at any time such Issuing Bank's Letter of Credit Commitment at such time
and (ii) in an Available Amount for each such Letter of Credit not to exceed the
lesser of (x) the Letter of Credit Facility at such time and (y) the Unused
Working Capital Commitments of the Working Capital Lenders at such time. No
Letter of Credit shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal) later than the earlier of 30
days before the Termination Date and (A) in the case of a Standby Letter of
Credit, one year after the date of issuance thereof and (B) in the case of a
Trade Letter of Credit, 60 days after the date of issuance thereof. Within the
limits of the Letter of Credit Facility, and subject to the limits referred to
above, the Borrower may request the issuance of Letters of Credit under this
Section 2.01(e), repay any Letter of Credit Advances resulting from drawings
thereunder pursuant to Section 2.03(c) and request the issuance of additional
Letters of Credit under this Section 2.01(e).
(f) Set Aside of Working Capital Commitments. Each Working Capital
Lender's Pro Rata Share of the aggregate Unused Working Capital Commitments
shall be
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reserved and shall not be available to be borrowed except for the purpose set
forth below in an amount equal to the aggregate amount of Obligations guaranteed
by the Borrower pursuant to Section 5.02(b)(i)(C) during any time that such
guaranteed Obligations exceed $1,000,000 outstanding and the aggregate Unused
Working Capital Commitments shall be less than $15,000,000, and shall be
available to be borrowed solely for purposes of financing such guaranteed
Obligations of the Borrower.
(g) Assignment. Effective as of the Fourth Closing Date, each
Existing Lender hereby sells and assigns all of its rights in and to, and all of
its obligations under, each Existing Advance owing to it and the Existing
Commitment held by it to the Initial Lenders and each Initial Lender hereby
purchases and assumes, pro rata based on such Initial Lender's Commitment, all
of the Existing Lenders' rights in and to, and all of their obligations under,
the Existing Advances and the Existing Commitments, such that after giving
effect to all such assignments, each Initial Lender's Commitment under each
Facility is in an amount equal to the amount under each such Facility specified
on Schedule I hereto. As of the Fourth Closing Date, immediately prior to giving
effect to any assignment under this Agreement as of such date pursuant to this
Section 2.01(g), each Existing Lender represents and warrants, as to the
assignment effected by such Existing Lender by this Agreement, that as of the
Fourth Closing Date such Existing Lender is the legal and beneficial owner of
such interest being assigned by it hereunder and that such interest is free and
clear of any adverse claim created by such Existing Lender.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided
in Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or not later than 9:00 A.M. (New York City time) on
the date of the proposed Borrowing in the case of a Borrowing consisting of Base
Rate Advances, by the Borrower to the Administrative Agent, which shall give to
each Appropriate Lender prompt notice thereof by telex or telecopier. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or telex or telecopier, in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Advance. Each Appropriate Lender shall, before 1:00 P.M.
(New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing in accordance with the respective Commitments under the
applicable Facility of such Lender and the other Appropriate Lenders. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the
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Borrower by crediting the Borrower's Account; provided, however, that, in the
case of any Working Capital Borrowing, the Administrative Agent shall first make
a portion of such funds equal to the aggregate principal amount of any Letter of
Credit Advances made by any Issuing Bank and by any other Working Capital Lender
and outstanding on the date of such Working Capital Borrowing, plus interest
accrued and unpaid thereon to and as of such date, available to such Issuing
Bank and such other Working Capital Lenders for repayment of such Letter of
Credit Advances.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
the initial Borrowing hereunder unless the Borrower shall have agreed, in
writing, prior to or concurrently with the giving of the applicable Notice of
Borrowing, to be bound by the terms of Section 2.02(c) or for any Borrowing if
the aggregate amount of such Borrowing is less than $5,000,000 or if the
obligation of the Appropriate Lenders to make Eurodollar Rate Advances shall
then be suspended pursuant to Section 2.09 or Section 2.10 and (ii) the Term
Loan Advances may not be outstanding as part of more than 5 separate Borrowings,
the AXELs Series A Advances may not be outstanding as part of more than 5
separate Borrowings, the AXELs Series B Advances may not be outstanding as part
of more than 5 separate Borrowings and the Working Capital Advances made on any
date may not be outstanding as part of more than 25 separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Appropriate Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from
an Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) or (b) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand
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such corresponding amount and to pay interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount is
repaid or paid to the Administrative Agent, at (i) in the case of the Borrower,
the interest rate applicable at such time under Section 2.07 to Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall pay to the Administrative Agent such corresponding
amount, such amount so paid shall constitute such Lender's Advance as part of
such Borrowing for all purposes.
(e) The failure of any Lender to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to any Issuing Bank, which shall give to the
Administrative Agent and each Working Capital Lender prompt notice thereof by
telex or telecopier. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of Credit,
and shall be accompanied by such application and agreement for letter of credit
as such Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). If (x) the
requested form of such Letter of Credit is acceptable to such Issuing Bank in
its sole discretion and (y) it has not received notice of objection to such
issuance from the Agents, such Issuing Bank will, upon fulfillment of the
applicable conditions set forth in Article III, make such Letter of Credit
available to the Borrower at its office referred to in Section 8.02 or as
otherwise agreed with the Borrower in connection with such issuance. In the
event and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.
(b) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to
the Administrative Agent on the first Business Day of each month a written
report summarizing issuance and expiration dates of Letters of Credit issued by
such Issuing Bank during the previous month and drawings during such month under
all Letters of Credit issued by such Issuing Bank, (B) to each Working Capital
Lender on the first Business Day of each month a written report summarizing
issuance and expiration dates of Letters of Credit issued by such Issuing Bank
during the preceding month and drawings during such month under all Letters
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of Credit issued by such Issuing Bank and (C) to the Administrative Agent and
each Working Capital Lender on the first Business Day of each calendar quarter a
written report setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by such Issuing
Bank.
(c) Drawing and Reimbursement. The payment by any Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by such Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft. Upon payment by any
Issuing Bank of a draft drawn under any Letter of Credit, such Issuing Bank
shall give prompt notice thereof to the Borrower and the Administrative Agent.
Upon written demand by any Issuing Bank with an outstanding Letter of Credit
Advance, with a copy of such demand to the Administrative Agent, each Working
Capital Lender shall purchase from such Issuing Bank, and such Issuing Bank
shall sell and assign to each such Working Capital Lender, such Lender's Pro
Rata Share of such outstanding Letter of Credit Advance as of the date of such
purchase, by making available for the account of its Applicable Lending Office
to the Administrative Agent for the account of such Issuing Bank, by deposit to
the Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit Advance to
be purchased by such Lender. Promptly after receipt thereof, the Administrative
Agent shall transfer such funds to such Issuing Bank. The Borrower hereby agrees
to each such sale and assignment. Each Working Capital Lender agrees to purchase
its Pro Rata Share of an outstanding Letter of Credit Advance on (i) the
Business Day on which demand therefor is made by the Issuing Bank which made
such Advance, provided notice of such demand is given not later than 11:00 A.M.
(New York City time) on such Business Day or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. Upon
any such assignment by an Issuing Bank to any other Working Capital Lender of a
portion of a Letter of Credit Advance, such Issuing Bank represents and warrants
to such other Lender that such Issuing Bank is the legal and beneficial owner of
such interest being assigned by it, free and clear of any liens, but makes no
other representation or warranty and assumes no responsibility with respect to
such Letter of Credit Advance, the Loan Documents or any Loan Party. If and to
the extent that any Working Capital Lender shall not have so made the amount of
such Letter of Credit Advance available to the Administrative Agent, such
Working Capital Lender agrees to pay to the Administrative Agent forthwith on
demand such amount together with interest thereon, for each day from the date of
demand by such Issuing Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate for its account or the account
of such Issuing Bank, as applicable. If any Lender shall pay to the
Administrative Agent such amount for the account of such Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by such Issuing Bank shall be reduced by such amount on such
Business Day.
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(d) Failure to Make Letter of Credit Advances. The failure of any
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Term Loan Advances. The
Borrower shall repay to the Administrative Agent for the ratable account of the
Term Loan Lenders the aggregate outstanding principal amount of the Term Loan
Advances on the following dates in the amounts indicated (which amounts shall be
reduced as a result of the application of prepayments in accordance with the
order of priority set forth in Section 2.06):
DATE AMOUNT
December 31, 1997 $7,500,000
March 31, 1998 $7,500,000
June 30, 1998 $3,125,000
September 30, 1998 $3,125,000
December 31, 1998 $9,375,000
March 31, 1999 $9,375,000
June 30, 1999 $3,750,000
September 30, 1999 $3,750,000
December 31, 1999 $11,250,000
March 31, 2000 $11,250,000
June 30, 2000 $3,750,000
September 30, 2000 $3,750,000
December 31, 2000 $11,250,000
March 31, 2001 $11,250,000
June 30, 2001 $3,750,000
September 30, 2001 $3,750,000
December 31, 2001 $11,250,000
March 31, 2002 $11,250,000
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term Loan Advances outstanding on such date.
(b) AXELs Series A Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the AXELs Series A Lenders the
aggregate outstanding principal amount of the AXELs Series A Advances on the
following dates in the
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amounts indicated (which amounts shall be reduced as a result of the application
of prepayments in accordance with the order of priority set forth in Section
2.06):
DATE AMOUNT
June 30, 1996 $250,000
September 30, 1996 $250,000
December 31, 1996 $750,000
March 31, 1997 $750,000
June 30, 1997 $250,000
September 30, 1997 $250,000
December 31, 1997 $750,000
March 31, 1998 $750,000
June 30, 1998 $250,000
September 30, 1998 $250,000
December 31, 1998 $750,000
March 31, 1999 $750,000
June 30, 1999 $250,000
September 30, 1999 $250,000
December 31, 1999 $750,000
March 31, 2000 $750,000
June 30, 2000 $250,000
September 30, 2000 $250,000
December 31, 2000 $750,000
March 31, 2001 $750,000
June 30, 2001 $10,000,000
September 30, 2001 $10,000,000
December 31, 2001 $30,000,000
March 31, 2002 $30,000,000
June 30, 2002 $12,500,000
September 30, 2002 $12,500,000
December 31, 2002 $37,500,000
March 31, 2003 $37,500,000
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the AXELs Series A Advances outstanding on such date.
(c) AXELs Series B Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the AXELs Series B Lenders the
aggregate
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outstanding principal amount of the AXELs Series B Advances on the following
dates in the amounts indicated (which amounts shall be reduced as a result of
the application of prepayments in accordance with the order of priority set
forth in Section 2.06):
DATE AMOUNT
June 30, 1996 $150,000
September 30, 1996 $150,000
December 31, 1996 $450,000
March 31, 1997 $843,940
June 30, 1997 $281,310
September 30, 1997 $281,310
December 31, 1997 $843,940
March 31, 1998 $843,940
June 30, 1998 $281,310
September 30, 1998 $281,310
December 31, 1998 $843,940
March 31, 1999 $843,940
June 30, 1999 $281,310
September 30, 1999 $281,310
December 31, 1999 $843,940
March 31, 2000 $843,940
June 30, 2000 $281,310
September 30, 2000 $281,310
December 31, 2000 $843,940
March 31, 2001 $843,940
June 30, 2001 $281,310
September 30, 2001 $281,310
December 31, 2001 $843,940
March 31, 2002 $843,940
June 30, 2002 $281,310
September 30, 2002 $281,310
December 31, 2002 $843,940
March 31, 2003 $843,940
June 30, 2003 $15,612,880
September 30, 2003 $15,612,880
December 31, 2003 $46,838,640
March 31, 2004 $46,838,640
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provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the AXELs Series B Advances outstanding on such date.
(d) Working Capital Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Working Capital Lenders on
the Termination Date the aggregate outstanding principal amount of the Working
Capital Advances then outstanding.
(e) Letter of Credit Advances. (i) The Borrower shall repay to the
Administrative Agent for the account of each Issuing Bank and each other Working
Capital Lender that has made a Letter of Credit Advance on the earlier of the
second Business Day following the date on which such Letter of Credit is drawn
and the Termination Date the outstanding principal amount of each Letter of
Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances (it being understood
that any such payment by the Borrower is without prejudice to, and does not
constitute a waiver of, any rights the Borrower might have or might acquire as a
result of the payment by any Issuing Bank of any draft or the reimbursement by
the Borrower thereof):
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (all of the foregoing being, collectively, the
"L/C Related Documents");
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any
consent to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), any Issuing Bank or any
other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;
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(D) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(E) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral or
other collateral, or any release or amendment or waiver of or consent to
departure from any Guaranty or any other guarantee, for all or any of the
Obligations of the Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower may, upon at least five Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the Term Loan Commitments, the AXELs Series A Commitments, the Existing AXELs
Series B Commitments, the New AXELs Series B Commitments, the Letter of Credit
Facility or the Unused Working Capital Commitments; provided, however, that each
partial reduction of a Facility (i) shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii)
shall be made ratably among the Appropriate Lenders in accordance with their
Commitments with respect to such Facility.
(b) Mandatory. (i) On the date of the Term Loan Borrowing, after
giving effect to such Term Loan Borrowing, and from time to time thereafter upon
each repayment or prepayment of the Term Loan Advances, the aggregate Term Loan
Commitments of the Term Loan Lenders shall be automatically and permanently
reduced, on a pro rata basis, by an amount equal to the amount by which the
aggregate Term Loan Commitments immediately prior to such reduction exceed the
aggregate unpaid principal amount of the Term Loan Advances then outstanding.
(ii) On the date of the AXELs Series A Borrowing, after giving
effect to such AXELs Series A Borrowing, and from time to time thereafter upon
each repayment or prepayment of the AXELs Series A Advances, the aggregate AXELs
Series A Commitments of the AXELs Series A Lenders shall be automatically and
permanently reduced, on a pro rata basis, by an amount equal to the amount by
which the aggregate AXELs Series A
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Commitments immediately prior to such reduction exceed the aggregate unpaid
principal amount of the AXELs Series A Advances then outstanding.
(iii) On the date of each of the AXELs Series B Borrowings comprised
of Existing AXELs Series B Advances, after giving effect to such AXELs Series B
Borrowings, and from time to time thereafter upon each repayment or prepayment
of the AXELs Series B Advances, the aggregate AXELs Series B Commitments of the
AXELs Series B Lenders shall be automatically and permanently reduced, on a pro
rata basis, by an amount equal to the amount by which the aggregate AXELs Series
B Commitments immediately prior to such reduction exceed the aggregate unpaid
principal amount of the AXELs Series B Advances then outstanding.
(iv) On the date of each of the AXELs Series B Borrowings comprised
of the initial New AXELs Series B Advances, after giving effect to such AXELs
Series B Borrowings, and from time to time thereafter upon each repayment or
prepayment of such New AXELs Series B Advances, the aggregate New AXELs Series B
Commitments of the New AXELs Series B Lenders shall be automatically and
permanently reduced, on a pro rata basis, by an amount equal to the amount by
which the aggregate New AXELs Series B Commitments immediately prior to such
reduction exceed the aggregate unpaid principal amount of the New AXELs Series B
Advances then outstanding.
(v) The Working Capital Facility shall be automatically and
permanently reduced on a pro rata basis on each date on which prepayment thereof
is required to be made pursuant to Section 2.06(b)(i), (ii), (iii) or (iv)
(other than pursuant to Section 2.06(b)(i)(B) and 2.06(b)(ii)(B)) in an amount
equal to the applicable Reduction Amount, provided that each such reduction of
the Working Capital Facility shall be made ratably among the Working Capital
Lenders in accordance with their Working Capital Commitments.
(vi) The Letter of Credit Facility shall be permanently reduced from
time to time on the date of each reduction in the Working Capital Facility by
the amount, if any, by which the amount of the Letter of Credit Facility exceeds
the Working Capital Facility after giving effect to such reduction of the
Working Capital Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may, upon at
least five Business Days' notice to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment (including,
without limitation, as a result of any refinancing in part or in whole of
amounts outstanding under the Loan Documents), and if such notice is given the
Borrower shall, prepay the outstanding aggregate principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part,
together with (i) accrued interest to the date of such prepayment on the
aggregate principal amount prepaid and (ii) in the case of any such prepayment
of any Advances other than Term Loan Advances, Working Capital Advances and
Letter of Credit Advances prior to the first
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anniversary of the First Closing Date, a premium of 1-3/4% of the aggregate
principal amount so prepaid, or on or after the first anniversary of the First
Closing Date but prior to the first anniversary of the Fourth Closing Date, a
premium of 1% of the aggregate principal amount so prepaid; provided, however,
that (x) each partial prepayment shall be in an aggregate principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof, (y) if any
prepayment of a Eurodollar Rate Advance shall be made on a date other than the
last day of an Interest Period therefor the Borrower shall also pay any amounts
owing pursuant to Section 8.04(c) and (z) prepayments of the Term Facilities
shall be made ratably among such Facilities, to be applied to the installments
of each such Facility on a pro rata basis.
(b) Mandatory. (i) The Borrower shall, on the 90th day following the
end of each Fiscal Year, (A) if the Total Debt/EBITDA Ratio is greater than or
equal to 5.50:1.00, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings outstanding under the Term Facilities in
an amount equal to the Excess Cash Flow Amount for such Fiscal Year and (B) if
the Total Debt/EBITDA Ratio is less than 5.50:1.00, prepay an aggregate
principal amount of the Working Capital Advances outstanding on such date in an
amount equal to the Excess Cash Flow Amount for such Fiscal Year. Each
prepayment made pursuant to clause (A) above shall be applied ratably to the
Term Facilities in accordance with, and subject to the terms of, clause (iv)
below and each prepayment made pursuant to clause (B) above shall be applied to
the Working Capital Facility as set forth in clause (vii) below.
(ii) (A) The Borrower shall, on the date of receipt of the Net Cash
Proceeds by any Loan Party or any of its Subsidiaries from (I) the sale, lease,
transfer or other disposition of any assets of any Loan Party or any of its
Subsidiaries (other than any sale, lease, transfer or other disposition of
assets pursuant to clause (i), (ii), (iii), (iv) or (v) of Section 5.02(e) and
other than the sale of assets pursuant to clause (vi) of Section 5.02(e) to the
extent that the Net Cash Proceeds of such sale do not exceed, in the aggregate
from the First Closing Date, $10,000,000), (II) the incurrence or issuance by
any Loan Party or any of its Subsidiaries of any Debt (other than Debt incurred
or issued pursuant to clause (i), (ii) or (iii) of Section 5.02(b)) and (III)
any Extraordinary Receipt received by or paid to or for the account of any Loan
Party or any of its Subsidiaries and not otherwise included in clause (I) or
(II) above, prepay an aggregate principal amount of the Advances comprising part
of the same Borrowings equal to the amount of such Net Cash Proceeds. Each such
prepayment shall be applied first ratably to the Term Facilities in accordance
with, and subject to the terms of, clause (iv) below and second to the Working
Capital Facility as set forth in clause (vii) below.
(B) The Borrower shall, on the date of receipt of the Net Cash Proceeds by
Parent from the sale or issuance by Parent of any capital stock or other
ownership or profit interest, any securities convertible into or exchangeable
for capital stock or other ownership or profit
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interest or any warrants, rights or options to acquire capital stock or other
ownership or profit interest, in each case from the IPO, prepay an aggregate
principal amount of the Working Capital Advances comprising part of the same
Borrowings in an amount equal to sum of (I) the lesser of (x) $150,000,000 and
(y) the sum of (1) $100,000,000 plus (2) to the extent such Net Cash Proceeds
exceed $275,000,000 (such amount being the "Excess Amount") an amount equal to
50% of the Excess Amount plus (II) any Net Cash Proceeds not otherwise applied
to prepay the Subordinated Notes as provided in Section 5.02(k). Each such
prepayment shall be applied to the Working Capital Facility as set forth in
clause (vii) below.
(C) The Borrower shall, on the date of receipt (or such later date as may
be specified below) of the Net Cash Proceeds by Parent from the sale or issuance
by Parent of any capital stock or other ownership or profit interest, any
securities convertible into or exchangeable for capital stock or other ownership
or profit interest or any warrants, rights or options to acquire capital stock
or other ownership or profit interest, in each case as a result of an equity
offering following the IPO, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings in an amount equal to (1) if Total
Debt/EBITDA Ratio at such time is greater than or equal to 4.00:1.00, 50% of the
amount of such Net Cash Proceeds, (2) if Total Debt/EBITDA Ratio at such time is
less than 4.00:1.00 but greater than or equal to 3.00:1.00, 50% of the amount by
which such Net Cash Proceeds exceed the amount of such Net Cash Proceeds used by
the Borrower and its Subsidiaries to make Investments in accordance with the
provisions of Section 5.02(f) during the nine months immediately following such
date, payable 30 days after the nine month anniversary of such date and (3) if
the Total Debt/EBITDA Ratio at such time is less than 3.00:1.00, zero. Each such
prepayment, if any, shall be applied first ratably to the Term Facilities in
accordance with, and subject to the terms of, clause (iv) below and second to
the Working Capital Facility as set forth in clause (vii) below.
(iii) Anything contained in this Section 2.06(b) to the contrary
notwithstanding, (A) if, following the occurrence of any "Asset Sale" (as such
term is defined in the Senior Subordinated Notes Indenture or the Senior
Subordinated Discount Notes Indenture) by any Loan Party or any of its
Subsidiaries, the Borrower is required to commit by a particular date (a
"Commitment Date") to apply or cause its Subsidiaries to apply an amount equal
to any of the "Net Proceeds" (as defined in the Senior Subordinated Notes
Indenture or the Senior Subordinated Discount Notes Indenture, as the case may
be) thereof in a particular manner, or to apply by a particular date (an
"Application Date") an amount equal to any such "Net Proceeds" in a particular
manner, in either case in order to excuse the Borrower from being required to
make an "Asset Sale Offer" (as defined in the Senior Subordinated Notes
Indenture or the Senior Subordinated Discount Notes Indenture, as the case may
be) in connection with such "Asset Sale," and the Borrower shall have failed to
so commit or to so apply an amount equal to such "Net Proceeds" at least 60 days
before the Commitment Date or the Application Date, as the case may be, or (B)
if the Borrower at
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any other time shall have failed to apply or commit or cause to be applied an
amount equal to any such "Net Proceeds," and, within 60 days thereafter assuming
no further application or commitment of an amount equal to such "Net Proceeds"
the Borrower would otherwise be required to make an "Asset Sale Offer" in
respect thereof, then in either such case the Borrower shall immediately apply
or cause to be applied an amount equal to such "Net Proceeds" to the payment of
the Advances in the manner set forth in Section 2.06(b)(ii) in such amounts as
shall excuse the Borrower from making any such "Asset Sale Offer".
(iv) Prepayments of the Term Facilities pursuant to Section
2.06(b)(i), (ii) or (iii) shall be made ratably among such Facilities, to be
applied to the installments of each such Facility on a pro rata basis until such
installments are paid in full; provided, however, that with respect to
prepayments made prior to or on the second anniversary of the First Closing
Date, once prepayments in a principal amount of $25,000,000 or more in the
aggregate since the First Closing Date shall have been applied to the AXELs
Series A Facility and the AXELs Series B Facility then the Lenders under such
Facilities, at each such Lender's option, may elect not to accept such
prepayment, in which event the provisions of the next sentence shall apply. With
respect to such prepayments made prior to or on the second anniversary of the
First Closing Date, once the AXELs Series A Facility and the AXELs Series B
Facility shall have been prepaid in a principal amount of $25,000,000 in the
aggregate since the First Closing Date, then upon receipt by the Administrative
Agent of such prepayment, the amount of the prepayment that is available to
prepay such Facilities (subject to the proviso to the immediately preceding
sentence) shall be deposited in the Cash Collateral Account (the "First
Prepayment Amount"), pending application of such amount on the First Prepayment
Date and the Second Prepayment Date as set forth below and promptly after such
receipt (the date of such receipt being the "Receipt Date"), the Administrative
Agent shall give written notice to the AXELs Series A Lenders and the AXELs
Series B Lenders of the amount available to prepay the Advances and the date on
which such prepayment shall be made (the "First Prepayment Date"), which date
shall be 10 days after the Receipt Date. Any Lender declining such prepayment (a
"First Declining Lender") shall give written notice to the Administrative Agent
by 12:00 Noon (New York City time) on the Business Day immediately preceding the
First Prepayment Date. On the First Prepayment Date, an amount equal to that
portion of the First Prepayment Amount accepted by the AXELs Series A Lenders
and the AXELs Series B Lenders other than the First Declining Lenders (such
Lenders being the "First Accepting Lenders") to prepay Advances owing to such
First Accepting Lenders shall be withdrawn from the Cash Collateral Account and
applied to prepay Advances owing to such First Accepting Lenders on a pro rata
basis and any amounts that would otherwise have been applied to prepay Advances
owing to the First Declining Lenders (the "Second Prepayment Amount") shall
instead be retained in the Cash Collateral Account and offered to the First
Accepting Lenders to prepay Advances owing to such First Accepting Lenders. The
Administrative Agent shall, on or prior to the First Prepayment Date, give
written notice to the First Accepting Lenders of the Second Prepayment Amount
that is available to prepay the Advances owing to such First Accepting
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Lenders and the date on which such prepayment shall be made (the "Second
Prepayment Date"), which date shall be 10 days after the First Prepayment Date.
Any First Accepting Lender declining such prepayment (a "Second Declining
Lender") shall give written notice to the Administrative Agent by 12:00 Noon
(New York City time) on the Business Day immediately preceding the Second
Prepayment Date. On the Second Prepayment Date, an amount equal to the Second
Prepayment Amount shall be withdrawn from the Cash Collateral Account and
applied to prepay Advances owing to the First Accepting Lenders other than the
Second Declining Lenders (such Lenders being the "Second Accepting Lenders") on
a pro rata basis and any amounts that would otherwise have been applied to
prepay Advances owing to Second Declining Lenders shall instead be applied first
to prepay Advances owing to the Term Loan Lenders on a pro rata basis and to the
installments thereof on a pro rata basis and second ratably to prepay the
Working Capital Facility as set forth in clause (vii) below and, if the Term
Loan Facility and Working Capital Facility shall have been paid in full and
terminated, amounts that would have been otherwise applied to prepay Advances
under such Facilities shall be applied instead to prepay Advances owing to the
Second Accepting Lenders.
(v) The Borrower shall, on each Business Day, prepay an aggregate
principal amount of the Working Capital Advances comprising part of the same
Borrowings and the Letter of Credit Advances equal to the amount by which (A)
the sum of the aggregate principal amount of (x) the Working Capital Advances
and (y) the Letter of Credit Advances then outstanding plus the aggregate
Available Amount of all Letters of Credit then outstanding exceeds (B) the
Working Capital Facility on such Business Day.
(vi) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in such Account to equal the
amount by which the aggregate Available Amount of all Letters of Credit then
outstanding exceeds the Letter of Credit Facility on such Business Day.
(vii) Prepayments of the Working Capital Facility made pursuant to
clause (i), (ii), (iii) or (iv) above shall be first applied to prepay Letter of
Credit Advances then outstanding until such Advances are paid in full, second
applied to prepay Working Capital Advances then outstanding comprising part of
the same Borrowings until such Advances are paid in full and third, other than
with respect to amounts prepaid pursuant to Section 2.06(b)(i)(B) or Section
2.06(b)(ii)(B), deposited in the L/C Cash Collateral Account to cash
collateralize 100% of the Available Amount of the Letters of Credit then
outstanding; and, in the case of prepayments of the Working Capital Facility
required pursuant to clause (i), (ii), (iii) or (iv) above, the amount remaining
(if any) after the prepayment in full of the Advances then outstanding and the
100% cash collateralization of the aggregate Available Amount of Letters of
Credit then outstanding (the sum of such prepayment amounts, cash
collateralization amounts and remaining amount being referred to herein as the
"Reduction
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Amount") may be retained by the Borrower and, other than with respect to amounts
prepaid pursuant to Section 2.06(b)(i)(B) or Section 2.06(b)(ii)(B), the Working
Capital Facility shall be permanently reduced as set forth in Section
2.05(b)(v). Upon the drawing of any Letter of Credit for which funds are on
deposit in the L/C Cash Collateral Account, such funds shall be applied to
reimburse the relevant Issuing Bank or Working Capital Lenders, as applicable.
(viii) Notwithstanding anything to the contrary contained in
subsection (b)(ii) of this Section 2.06, so long as no Default shall have
occurred and be continuing, if, on any date on which a prepayment of Advances
would otherwise be required pursuant to subsection (b)(ii) of this Section 2.06,
the aggregate amount of Net Cash Proceeds or other amounts otherwise required by
such subsection to be applied to prepay Advances on such date are less than or
equal to $1,000,000, the Borrower may defer such prepayment until the date on
which the aggregate amount of Net Cash Proceeds or other amounts otherwise
required by such subsection to be applied to prepay Advances exceeds $1,000,000.
During such deferral period, the Borrower may apply all or any part of such
aggregate amount to prepay Working Capital Advances and may, subject to the
fulfillment of the conditions set forth in Section 3.02, reborrow such amounts
(which amounts, to the extent originally constituting Net Cash Proceeds, shall
be deemed to retain their original character as Net Cash Proceeds when so
reborrowed) for application as required by this Section 2.06. Upon the
occurrence of a Default, the Borrower shall immediately prepay Advances in the
amount of all Net Cash Proceeds received by the Borrower and other amounts, as
applicable, that are required to be applied to prepay Advances by this Section
2.06 (without giving effect to the first and second sentences of this subsection
(b)(viii)) but which have not previously been so applied.
(ix) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to
each Lender from the date of such Advance until such principal amount shall
be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of (A)
the Base Rate in effect from time to time plus (B) the Applicable Margin
in effect from time to time, payable in arrears quarterly on the first day
of each July, October, January and April during such periods and on the
date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest
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Period for such Advance to the sum of (A) the Eurodollar
Rate for such Interest Period for such Advance plus (B) the Applicable
Margin in effect on the first day of such Interest Period, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of a Default, the Borrower shall pay interest on (i) the unpaid principal amount
of each Advance owing to each Lender, payable in arrears on the dates referred
to in clause (a)(i) or (a)(ii) above and on demand, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid, in the case
of interest, on the Type of Advance on which such interest has accrued pursuant
to clause (a)(i) or (a)(ii) above, and, in all other cases, on Base Rate
Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.02(a), the Administrative Agent shall give
notice to the Borrower and each Appropriate Lender of the applicable interest
rate determined by the Administrative Agent for purposes of clause (a)(i) or
(ii).
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall
pay to the Administrative Agent for the account of the Lenders a commitment
fee, from the date of the acceptance of the Initial Lenders' Commitments by
the Borrower in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date, payable
in arrears on the date of the initial Borrowing hereunder, thereafter
quarterly on the first day of each July, October, January and April,
commencing July 1, 1996, and on the Termination Date, at a rate per annum
equal to 0.375% on the average daily Unused Working Capital Commitment of
such Lender during such quarter; provided, however, that no commitment fee
shall accrue on any of the Commitments of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the
Administrative Agent for the account of each Working Capital Lender a
commission, payable in arrears quarterly on the first day of each July, October,
January and April, commencing July 1, 1996, and on the earliest to occur of the
full drawing, expiration, termination or
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cancellation of any Letter of Credit and on the Termination Date, on such
Lender's Pro Rata Share of the average daily aggregate Available Amount during
such quarter of all Letters of Credit outstanding from time to time at a rate
per annum equal to the Applicable Margin for Eurodollar Rate Advances in effect
from time to time.
(ii) The Borrower shall pay to each Issuing Bank, for its own
account, such commissions, issuance fees, fronting fees, transfer fees and other
fees and charges in connection with the issuance or administration of each
Letter of Credit as the Borrower and such Issuing Bank shall agree.
(c) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time
be agreed between the Borrower and the Administrative Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The Borrower may
on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Section 2.10,
Convert all or any portion of the Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the
Appropriate Lenders in accordance with their Commitments under such Facility.
Each such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $5,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate
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Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Eurodollar Rate Advance with an Interest Period of one
month.
(iii) Upon the occurrence and during the continuance of any Default,
(x) each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (y) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to
issue or of issuing or maintaining or participating in Letters of Credit or of
agreeing to make or of making or maintaining Letter of Credit Advances
(excluding for purposes of this Section 2.10 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.12 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender Party is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Borrower shall from time to time, upon
demand by such Lender Party (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender Party
additional amounts sufficient to compensate such Lender Party for such increased
cost; provided, however, that, before making any such demand, each Lender Party
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Applicable Lending Office
if the making of such a designation would avoid the need for, or reduce the
amount of, such increased cost and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous to such Lender Party. A certificate
as to the amount of such increased cost, submitted to the Borrower by such
Lender Party, shall be conclusive and binding for all purposes, absent manifest
error.
(b) If any Lender Party determines that either (i) the enactment of
or any change in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder and other commitments of such type or the issuance or
maintenance of or participation in the Letters of Credit (or similar contingent
obligations), then, upon demand by such Lender Party or such corporation (with a
copy of such demand to the Administrative Agent), the Borrower shall
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pay to the Administrative Agent for the account of such Lender Party, from time
to time as specified by such Lender Party, additional amounts sufficient to
compensate such Lender Party in the light of such circumstances, to the extent
that such Lender Party reasonably determines such increase in capital to be
allocable to the existence of such Lender Party's commitment to lend or to issue
or participate in Letters of Credit hereunder or to the issuance or maintenance
of or participation in any Letters of Credit; provided, however, that, before
making any such demand, each Lender Party agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such additional
amounts payable under this subsection (b) and would not, in the reasonable
judgment of such Lender Party, be otherwise disadvantageous to such Lender
Party. A certificate as to such amounts submitted to the Borrower by such Lender
Party shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least 25% of the then aggregate unpaid principal
amount thereof notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Appropriate Lenders, whereupon (i) each such Eurodollar Rate
Advance under any Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lenders have determined that the circumstances
causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.15), not
later than 11:00 A.M. (New York
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City time) on the day when due in U.S. dollars to the Administrative Agent at
the Administrative Agent's Account in same day funds, with payments being
received by the Administrative Agent after such time being deemed to have been
received on the next succeeding Business Day. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if such payment by
the Borrower is in respect of principal, interest, commitment fees or any other
Obligation then payable hereunder and under the Notes to more than one Lender
Party, to such Lender Parties for the account of their respective Applicable
Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lender Parties and (ii) if such payment by the
Borrower is in respect of any Obligation then payable hereunder to one Lender
Party, to such Lender Party for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(d), from and after
the effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application to
the Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Party's proportionate share of the principal amount
of all outstanding Advances and the Available Amount of all Letters of Credit
then outstanding, in repayment or prepayment of such of the outstanding Advances
or other Obligations owed to such Lender Party, and for application to such
principal installments, as the Administrative Agent shall direct.
(c) The Borrower hereby authorizes each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or, in
the case of a Lender, under the Note held by such Lender, to charge from time to
time against any or all of the Borrower's accounts with such Lender Party any
amount so due.
(d) All computations of interest, fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
fees or commissions are payable. Each determination by the Administrative Agent
of an interest rate, fee or commission hereunder shall be conclusive and binding
for all purposes, absent manifest error.
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(e) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to such Lender Party on
such due date an amount equal to the amount then due such Lender Party. If and
to the extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender Party shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Lender Party together
with interest thereon, for each day from the date such amount is distributed to
such Lender Party until the date such Lender Party repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender Party and each Agent,
taxes that are imposed on its overall net income by the United States and taxes
that are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the state or foreign jurisdiction under the laws of which such
Lender Party or such Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender Party, taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction of such Lender Party's Applicable Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender Party or any Agent,
(i) the sum payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 2.12) such Lender Party or such Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
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(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender Party and each Agent
for and hold it harmless against the full amount of Taxes and Other Taxes, and
the full amount of taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.12, imposed on or paid by such Lender Party or such
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender Party or
such Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United States or by or
on behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender or Initial Issuing
Bank, as the case may be, and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender Party in the case of each other Lender
Party, and from time to time thereafter as requested in writing by the Borrower
(but only so long thereafter as such Lender Party remains lawfully able to do
so), provide each of the Administrative Agent and the Borrower with two original
Internal Revenue Service forms 1001 or 4224 or (in the case of a Lender Party
that is claiming exemption from United States withholding tax under Section
871(h) or 881(c) of the Internal Revenue Code with respect to payments of
"portfolio interest") form W-8 (and, if such Lender Party delivers a form W-8, a
certificate representing that such Lender Party is not a "bank" for purposes of
Section 881(c) of the Internal Revenue Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Internal Revenue Code)), as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such
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Lender Party is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes or, in the
case of a Lender Party providing a form W-8, certifying that such Lender Party
is a foreign corporation, partnership, estate or trust. If the forms provided by
a Lender Party at the time such Lender Party first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from the
definition of Taxes hereunder unless and until such Lender Party provides the
appropriate form certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from the definition of
Taxes hereunder for periods governed by such form; provided, however, that, if
at the date of the Assignment and Acceptance pursuant to which a Lender Party
becomes a party to this Agreement, the Lender Party assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includible in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee on such date.
(f) For any period with respect to which a Lender Party has failed
to provide the Borrower with the appropriate form described in subsection (e)
above (other than if such failure is due to a change in law occurring after the
date on which a form originally was required to be provided or if such form
otherwise is not required under subsection (e) above), such Lender Party shall
not be entitled to indemnification under subsection (a) or (c) with respect to
Taxes imposed by the United States by reason of such failure; provided, however,
that should a Lender Party become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender Party shall reasonably request to assist such Lender Party to recover
such Taxes.
(g) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.12 shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous to such Lender Party.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 8.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to
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all Lender Parties hereunder and under the Notes at such time obtained by all
the Lender Parties at such time or (b) on account of Obligations owing (but not
due and payable) to such Lender Party hereunder and under the Notes at such time
in excess of its ratable share (according to the proportion of (i) the amount of
such Obligations owing to such Lender Party at such time to (ii) the aggregate
amount of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations owing (but not due and payable) to all Lender Parties hereunder and
under the Notes at such time obtained by all of the Lender Parties at such time,
such Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Obligations due and payable or owing
to them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (i) the purchase price paid to
such Lender Party to (ii) the aggregate purchase price paid to all Lender
Parties) of such recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (i) the amount of such other
Lender Party's required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered; provided
further that, so long as the Obligations under the Loan Documents shall not have
been accelerated, any excess payment received by any Appropriate Lender shall be
shared on a pro rata basis only with other Appropriate Lenders. The Borrower
agrees that any Lender Party so purchasing an interest or participating interest
from another Lender Party pursuant to this Section 2.13 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of set-off) with respect to such interest or participating interest, as the case
may be, as fully as if such Lender Party were the direct creditor of the
Borrower in the amount of such interest or participating interest, as the case
may be.
SECTION 2.14. Use of Proceeds. The proceeds of (i) the Term Loan
Advances, the AXELs Series A Advances and the Existing AXELs Series B Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely to pay to the Sellers the cash consideration for the Acquisition, pay
transaction fees and expenses and refinance certain Existing Debt, (ii) the New
AXELs Series B Advances shall be available (and the Borrower agrees that it
shall use such proceeds) solely to prepay outstanding Acquisition Advances
pursuant to and as defined in the Second Credit Agreement and to pay transaction
fees and expenses incurred in connection with the First Amendment, and (iii) the
Working Capital Advances and the issuances of Letters of Credit shall be
available (and the Borrower agrees that it shall use such proceeds and Letters
of Credit) solely (a) to provide working capital for the Borrower and its
Subsidiaries, (b) to finance certain acquisitions to the extent permitted
hereunder and to refinance construction costs of new bowling centers
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after the completion of the construction thereof, (c) to make any payments
required under the Support Agreement, (d) to pay to the Sellers the "purchase
price adjustment" (if any) required to be paid pursuant to the Purchase
Agreement, (e) to finance payments required under guarantees permitted by
Section 5.02(b)(iii)(I) and (f) for other general corporate purposes.
SECTION 2.15. Defaulting Lenders. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the Obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, the Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by the Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date under the Facility pursuant
to which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01. Such Advance shall be a Base Rate Advance and shall be
considered, for all purposes of this Agreement, to comprise part of the
Borrowing in connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01, even if the other Advances
comprising such Borrowing shall be Eurodollar Rate Advances on the date such
Advance is deemed to be made pursuant to this subsection (a). The Borrower shall
notify the Administrative Agent at any time the Borrower exercises its right of
set-off pursuant to this subsection (a) and shall set forth in such notice (A)
the name of the Defaulting Lender and the Defaulted Advance required to be made
by such Defaulting Lender and (B) the amount set off and otherwise applied in
respect of such Defaulted Advance pursuant to this subsection (a). Any portion
of such payment otherwise required to be made by the Borrower to or for the
account of such Defaulting Lender which is paid by the Borrower, after giving
effect to the amount set off and otherwise applied by the Borrower pursuant to
this subsection (a), shall be applied by the Administrative Agent as specified
in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount
to any Agent or any of the other Lender Parties and (iii) the Borrower shall
make any payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the
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payment of each such Defaulted Amount to the extent required to pay such
Defaulted Amount. In the event that the Administrative Agent shall so apply any
such amount to the payment of any such Defaulted Amount on any date, the amount
so applied by the Administrative Agent shall constitute for all purposes of this
Agreement and the other Loan Documents payment, to such extent, of such
Defaulted Amount on such date. Any such amount so applied by the Administrative
Agent shall be retained by the Administrative Agent or distributed by the
Administrative Agent to such other Agents or Lender Parties, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Agents and Lender Parties
and, if the amount of such payment made by the Borrower shall at such time be
insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent and the other Agents and Lender Parties, in the following
order of priority:
(i) first, to the Agents for any Defaulted Amount then owing to the
Agents, ratably in accordance with such respective Defaulted Amounts then
owing to the Agents; and
(ii) second, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, any Agent or any other
Lender Party shall be required to pay or distribute any amount hereunder or
under any other Loan Document to or for the account of such Defaulting Lender,
then the Borrower or such other Lender Party shall pay such amount to the
Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow under
this subsection (c) shall be deposited by the Administrative Agent in an account
with Citibank, in the name and under the control of the Administrative Agent,
but subject to the provisions of this subsection (c). The terms applicable to
such account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be Citibank's standard terms
applicable to escrow accounts maintained with it. Any interest credited to such
account from time to time shall be held by the Administrative Agent in escrow
under, and applied by the Administrative Agent from time to time in accordance
with the provisions of, this
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subsection (c). The Administrative Agent shall, to the fullest extent permitted
by applicable law, apply all funds so held in escrow from time to time to the
extent necessary to make any Advances required to be made by such Defaulting
Lender and to pay any amount payable by such Defaulting Lender hereunder and
under the other Loan Documents to the Administrative Agent or any other Agent or
Lender Party, as and when such Advances or amounts are required to be made or
paid and, if the amount so held in escrow shall at any time be insufficient to
make and pay all such Advances and amounts required to be made or paid at such
time, in the following order of priority:
(i) first, to the Agents for any amount then due and payable by such
Defaulting Lender to the Agents under the Loan Documents, ratably in
accordance with such respective amounts then due and payable to the
Agents;
(ii) second, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
(iii) third, to the Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that any Agent or any Lender Party may have against such Defaulting Lender with
respect to any Defaulted Amount.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of Credit.
The obligation of each Lender to make an Advance or of any Issuing Bank to issue
a Letter of Credit on the occasion of the Initial Extension of Credit hereunder
is subject to the
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satisfaction of the following conditions precedent before or concurrently with
the Initial Extension of Credit:
(a) The Acquisition shall have been consummated in accordance with
the terms of the Purchase Agreement, without any waiver or amendment not
consented to by the Agents of any material term, provision or condition
set forth therein, and in compliance with all applicable laws.
(b) The Purchase Agreement shall be in full force and effect.
(c) Parent shall have received at least $375,000,000 in Net Cash
Proceeds of the sale of equity to the Equity Investors, and such Net Cash
Proceeds shall have been contributed, directly or indirectly, to the
Borrower as a capital contribution and the Borrower shall have received
$500,000,000 (less an underwriting spread of 3.5% on the first
$350,000,000 and 4.5% on the remaining $150,000,000) in gross cash
proceeds of the issuance of the Subordinated Notes.
(d) The Lender Parties shall be satisfied with the corporate and
legal structure and capitalization of each Loan Party and each of its
Subsidiaries, including the terms and conditions of the charter, bylaws
and each class of capital stock of each Loan Party and each such
Subsidiary and of each agreement or instrument relating to such structure
or capitalization.
(e) The Agents shall be satisfied that all Existing Debt, other than
the Debt identified on Schedule 3.01(e) (the "Surviving Debt"), has been
prepaid, redeemed or defeased in full or otherwise satisfied and
extinguished and that all Surviving Debt shall be on terms and conditions
satisfactory to the Lender Parties.
(f) Before giving effect to the Acquisition and the other
transactions contemplated by this Agreement, there shall have occurred no
Material Adverse Change since December 31, 1995.
(g) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
would be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of the
Acquisition, this Agreement, any Note, any other Loan Document, any
Related Document or the consummation of the transactions contemplated
hereby.
(h) Nothing shall have come to the attention of the Lender Parties
during the course of their due diligence investigation to lead them to
believe (i) that the Information Memorandum was or has become misleading,
incorrect or incomplete in
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any material respect, (ii) that, following the consummation of the
Acquisition, the Borrower and its Subsidiaries would not have good and
marketable title to all material assets of the Company and its
Subsidiaries reflected in the Information Memorandum (other than those
disposed of in the ordinary course of business) and (iii) that the
Acquisition will have a Material Adverse Effect; without limiting the
generality of the foregoing, the Agents shall have been given such access
to the management, records, books of account, contracts and properties of
the Loan Parties and their Subsidiaries as they shall have requested.
(i) All governmental and third party consents and approvals
necessary in connection with the Acquisition, the Loan Documents and the
Related Documents and the transactions contemplated thereby shall have
been obtained (without the imposition of any conditions that are not
reasonably acceptable to the Agents) and shall remain in effect other than
such governmental or third party consents and approvals the failure to
obtain which shall not (x) be materially adverse to Holdings or the
Borrower, in each case together with its respective Subsidiaries, taken as
a whole, (y) affect the enforceability, validity or binding effect of any
of the Loan Documents required to be executed and delivered prior to or on
the First Closing Date or (z) expose the Arrangers, the Agents or the
Lender Parties to personal liability; provided, however, that with respect
to the receipt of licenses to sell or serve alcoholic beverages or to
engage in gaming, lottery or gambling activities (or the necessary
consents or approvals with respect thereto), such condition shall be
satisfied if the Agents are reasonably satisfied that licenses have been
obtained or that other appropriate mechanisms which will not result in
denial or loss of a license or penalties (other than immaterial civil
penalties) or put the Borrower or its Subsidiaries at risk of an
enforcement action for a violation are in place and, in each case, are
expected to remain in place for the foreseeable future without material
risk or expectation of losing such ability in the future (other than the
risk that any holder of a liquor license or a gaming, lottery or gambling
license that complies with the terms and requirements of such license and
the relevant law generally bears of nonrenewal) so that after the First
Closing Date, alcoholic beverages can continue to be sold or served and
gaming activities can continue to be conducted in essentially the same
manner and on essentially the same terms (and without any additional
material restrictions) as before the First Closing Date and in compliance
in all material respects with all applicable laws and rules, regulations,
statutes, licenses and orders of any governmental authority relating to
the sale or service of alcoholic beverages or engaging in gaming, lottery
and gambling activities at bowling centers (or related premises) which
would reasonably be expected to enable the Borrower and its Subsidiaries
to derive, during a 10-month period beginning on the First Closing Date,
at least 90% of the total revenues from the sale and/or service of
alcoholic beverages and, other than in the State of Washington, gaming,
lottery and gambling activities (and from any related management service
agreements and leases) during the
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10-month period ended October 31, 1995; all applicable waiting periods
shall have expired without any action being taken by any competent
authority; and no law or regulation shall be applicable in the judgment of
the Agents that restrains, prevents or imposes materially adverse
conditions upon the Acquisition, the Loan Documents and the Related
Documents and the transactions contemplated thereby.
(j) The Agents shall be satisfied with all contractual and other
arrangements with the Borrower's management.
(k) All capital stock of the Borrower shall be owned by Holdings,
all capital stock of Holdings shall be owned by Parent and all capital
stock of Parent shall be owned by the Equity Investors, and all of the
stock of the Borrower's Subsidiaries shall be owned by the Borrower or one
or more of the Borrower's Subsidiaries, in each case free and clear of any
lien, charge or encumbrance, other than Liens in favor of the Secured
Parties.
(l) The Agents shall be satisfied that the Borrower and its
Subsidiaries will be able to meet their obligations under all Plans, that
the Borrower's and its Subsidiaries' Plans are, in all material respects,
funded in accordance with the minimum statutory requirements, that no
material "reportable event" (as defined in ERISA, but excluding events for
which reporting has been waived) has occurred as to any such Plan and that
no termination of, or withdrawal from, any such Plan has occurred or is
contemplated that could result in a material liability.
(m) The Agents shall be satisfied (i) with the sources, terms and
conditions of the equity and the other debt financing for the Acquisition
and the other transactions contemplated by the Loan Documents and the
Related Documents, (ii) that the amount of committed equity and debt
financing shall be sufficient to meet the financing requirements of the
Acquisition and the other transactions contemplated by the Loan Documents
and the Related Documents and (iii) that the amount of transaction fees
and expenses payable in connection with the closing of the Acquisition and
the other transactions contemplated by the Loan Documents and the Related
Documents does not exceed the maximum amount previously disclosed to the
Initial Lenders.
(n) The Lender Parties shall have received audited financial
statements of the Borrower and its Subsidiaries for the year ended
December 31, 1995, from which financial statements shall be derived a
Consolidated pro forma EBITDA of the Borrower and its Subsidiaries of at
least $165,000,000 (as reflected in the offering circular for the
Subordinated Notes).
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(o) The Borrower shall have paid all accrued fees of the Lender
Parties and all accrued fees and expenses of the Agents and the Arrangers
(including the accrued fees and expenses of counsel to the Agents and the
Arrangers and local, foreign and intellectual property counsel to, and of
other experts and advisors retained by, the Agents for the Lender
Parties).
(p) The Administrative Agent shall have received on or before the
day of the Initial Extension of Credit the following, each dated such day
(unless otherwise specified), in form and substance satisfactory to the
Agents (unless otherwise specified) and (except for the Notes) in
sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower, the Company and each other Loan Party
approving the Acquisition, this Agreement, the Notes, each other
Loan Document and each Related Document to which it is or is to be a
party, and of all documents evidencing other necessary corporate
action and governmental and other third party approvals and
consents, if any, with respect to the Acquisition, this Agreement,
the Notes, each other Loan Document and each Related Document.
(iii) A copy of a certificate of the Secretary of State of the
jurisdiction of its incorporation, dated reasonably near the date of
the Initial Extension of Credit, listing the charter of the
Borrower, the Company and each other Loan Party and each amendment
thereto on file in his office and certifying that (A) such
amendments are the only amendments to the Borrower's, the Company's
or such other Loan Party's charter on file in his office, (B) the
Borrower, the Company and each other Loan Party have paid all
franchise taxes to the date of such certificate and (C) the
Borrower, the Company and each other Loan Party are duly
incorporated and in good standing under the laws of the jurisdiction
of its incorporation.
(iv) A copy of a certificate of the Secretary of State of such
states as the Administrative Agent may require, dated reasonably
near the date of the Initial Extension of Credit, stating that the
Borrower, the Company and each other Loan Party are duly qualified
and in good standing as foreign corporations in such State and have
filed all annual reports required to be filed to the date of such
certificate.
(v) A certificate of the Borrower, the Company and each other
Loan Party, signed on behalf of the Borrower, the Company and such
other
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Loan Party by its President or a Vice President and its Secretary or
any Assistant Secretary, dated the date of the Initial Extension of
Credit (the statements made in which certificate shall be true on
and as of the date of the Initial Extension of Credit), certifying
as to (A) the absence of any amendments to the charter of the
Borrower, the Company or such other Loan Party since the date of the
Secretary of State's certificate referred to in Section
3.01(p)(iii), (B) a true and correct copy of the bylaws of the
Borrower, the Company and such other Loan Party as in effect on the
date of the Initial Extension of Credit, (C) the due incorporation
and good standing of the Borrower, the Company and such other Loan
Party as a corporation organized under the laws of the state of its
incorporation, and the absence of any proceeding for the dissolution
or liquidation of the Borrower, the Company or such other Loan
Party, (D) the truth of the representations and warranties contained
in the Loan Documents as though made on and as of the date of the
Initial Extension of Credit and (E) the absence of any event
occurring and continuing, or resulting from the Initial Extension of
Credit, that constitutes a Default.
(vi) A certificate of the Secretary or an Assistant Secretary
of the Borrower, the Company and each other Loan Party certifying
the names and true signatures of the officers of the Borrower, the
Company and such other Loan Party authorized to sign this Agreement,
the Notes, each other Loan Document and each Related Document to
which they are or are to be parties and the other documents to be
delivered hereunder and thereunder.
(vii) A security agreement in substantially the form of
Exhibit D hereto (together with each other security agreement
delivered or to be delivered pursuant to Section 5.01(n), in each
case as amended, supplemented or otherwise modified from time to
time in accordance with its terms, the "Security Agreement"), duly
executed by the Borrower and each other Loan Party, together with:
(A) certificates representing the Pledged Shares
referred to therein accompanied by undated stock powers
executed in blank and instruments evidencing the Pledged Debt
referred to therein indorsed in blank,
(B) duly executed proper financing statements, to be
filed under the Uniform Commercial Code of all jurisdictions
that the Collateral Agent may deem necessary or desirable in
order to perfect and protect the first priority liens and
security interests created under
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the Security Agreement, covering the Collateral described in
the Security Agreement,
(C) completed requests for information, dated on or
before the date of the Initial Extension of Credit, listing
all effective financing statements filed in the jurisdictions
referred to in clause (B) above that name the Borrower, the
Company or any other Loan Party as debtor, together with
copies of such other financing statements,
(D) evidence of the completion of all other recordings
and filings of or with respect to the Security Agreement that
the Collateral Agent may deem necessary or desirable in order
to perfect and protect the Liens created thereby,
(E) evidence of the insurance required by the terms
of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the
Security Agreement, together with a consent to such assignment
(to the extent required by the terms of the Security
Agreement), in substantially the form of Exhibit B to the
Security Agreement, duly executed by each party to such
Assigned Agreements other than the Loan Parties,
(G) the Blocked Account Letters referred to in the
Security Agreement (to the extent required by the terms of the
Security Agreement), duly executed by each Blocked Account
Bank referred to in the Security Agreement, and
(H) evidence that all other action that the Collateral
Agent may deem necessary or desirable in order to perfect and
protect the first priority liens and security interests
created under the Security Agreement has been taken.
(viii) An intellectual property security agreement in
substantially the form of Exhibit E hereto (together with each other
intellectual property security agreement delivered or to be
delivered pursuant to Section 5.01(n), in each case as amended,
supplemented or otherwise modified from time to time in accordance
with its terms, the "Intellectual Property Security Agreement"),
duly executed by the Borrower and each other Loan Party, together
with evidence that all action that the Collateral Agent may deem
necessary or desirable in order to perfect and protect the first
priority liens and security
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interests created under the Intellectual Property Security
Agreement has been taken.
(ix) Deeds of trust, trust deeds, mortgages, leasehold
mortgages and leasehold deeds of trust in substantially the form of
Exhibit F hereto and covering properties listed on Part I of
Schedule 4.01(kk) and Part I of Schedule 4.01(ll) (together with
each other mortgage delivered or to be delivered pursuant to Section
5.01(n), in each case as amended, supplemented or otherwise modified
from time to time in accordance with their terms, the "Mortgages"),
duly executed by the appropriate Loan Party, together with:
(A) fully paid American Land Title Association Lender's
Extended Coverage title insurance policies (the "Mortgage
Policies") in form and substance, with endorsements and in
amount acceptable to the Collateral Agent, issued, coinsured
and reinsured by title insurers acceptable to the Collateral
Agent, insuring the Mortgages covering the manufacturing
facilities listed on Schedules 4.01(ll) and 4.01(kk) to be
valid first and subsisting Liens on the property described
therein, free and clear of all defects (including, but not
limited to, mechanics' and materialmen's Liens) and
encumbrances, excepting only Permitted Encumbrances, and
providing for such other affirmative insurance (including
endorsements for future advances under the Loan Documents and
for mechanics' and materialmen's Liens) and such coinsurance
and direct access reinsurance as the Collateral Agent may deem
necessary or desirable,
(B) title reports, prepared by one or more nationally
recognized title insurance companies, with respect to each of
the properties covered by the Mortgages, reflecting that such
properties are free and clear of all defects (including, but
not limited to, mechanics' and materialmen's Liens) and
encumbrances, excepting only Permitted Encumbrances,
(C) Surveys in form and substance satisfactory to the
Collateral Agent with respect to the manufacturing plants
located in Lowville, New York and Richmond, Virginia, each
dated no more than 30 days before the day of the Initial
Extension of Credit, certified to the Collateral Agent and the
issuer of the Mortgage Policies in a manner satisfactory to
the Collateral Agent by a land surveyor duly registered and
licensed in the States in which the respective property
described in such surveys is located and acceptable to the
Collateral Agent, showing all buildings and other
improvements, any off-site
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improvements, the location of any easements, parking spaces,
rights of way, building set-back lines and other dimensional
regulations and the absence of encroachments, either by such
improvements or on to such property, and other defects, other
than encroachments and other defects acceptable to the
Collateral Agent, and
(D) evidence of the insurance required by the terms of
the Mortgages.
(x) A guaranty in substantially the form of Exhibit G hereto
(as amended, supplemented or otherwise modified in accordance with
its terms, the "Holdings Guaranty"), duly executed by Holdings.
(xi) A guaranty in substantially the form of Exhibit H hereto
(together with each other guaranty delivered or to be delivered
pursuant to Section 5.01(n), in each case as amended, supplemented
or otherwise modified from time to time in accordance with its
terms, the "Subsidiary Guaranty"), duly executed by the Subsidiary
Guarantors.
(xii) Certified copies of each of the Related Documents, duly
executed by the parties thereto and in form and substance
satisfactory to the Lender Parties, together with all agreements,
instruments and other documents delivered in connection therewith.
(xiii) Such financial, business and other information
regarding each Loan Party and its Subsidiaries as the Agents shall
have requested, including, without limitation, information as to
possible contingent liabilities, tax matters, environmental matters,
obligations under Plans, Multiemployer Plans and Welfare Plans,
collective bargaining agreements and other arrangements with
employees, audited annual financial statements dated December 31,
1995, draft financial statements dated March 31, 1996 (or, in the
event the Agents' due diligence review reveals material changes
since such financial statements, as of a later date within 45 days
of the day of the Initial Extension of Credit), annual financial
statements dated December 31, 1995 reflecting revenues and EBITDA by
business segment, a business plan for the Borrower prepared by
management of the Borrower, pro forma financial statements as to the
Borrower and forecasts prepared by management of the Borrower, in
form and substance satisfactory to the Agents, of balance sheets,
income statements and cash flow statements on an annual basis for
each year following the day of the Initial Extension of Credit until
the Termination Date for the AXELs Series B Facility.
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(xiv) Letters and certificates, in substantially the form of
Exhibits I and J hereto, respectively, attesting to the Solvency of
Holdings, the Borrower and each of the Borrower's first tier and
second tier Subsidiaries (other than any such Subsidiary the primary
business of which is to hold liquor licenses) after giving effect to
the Acquisition and the other transactions contemplated hereby, from
a Designated Financial Officer and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇.
(xv) An environmental assessment report, in form and substance
satisfactory to the Lender Parties, from Dames & ▇▇▇▇▇, as to any
risks, costs or liabilities under Environmental Laws to which any
Loan Party or any of its Subsidiaries may be subject, the amount and
nature of which and the Borrower's plans with respect to which shall
be acceptable to the Lender Parties, together with evidence, in form
and substance satisfactory to the Lender Parties, that all
applicable Environmental Laws shall have been materially complied
with.
(xvi) A letter, in form and substance satisfactory to the
Administrative Agent, from the Borrower to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, L.L.P.,
its independent certified public accountants, advising such
accountants that the Administrative Agent and the Lender Parties
have been authorized to exercise all rights of the Borrower to
require such accountants to disclose any and all financial
statements and any other information of any kind that they may have
with respect to the Borrower and its Subsidiaries and directing such
accountants to comply with any reasonable request of the
Administrative Agent or any Lender Party for such information.
(xvii) Evidence of insurance naming the Collateral Agent for
the benefit of the Secured Parties as insured and loss payee with
such responsible and reputable insurance companies or associations,
and in such amounts and covering such risks, as is satisfactory to
the Collateral Agent.
(xviii) Certified copies of each employment agreement and
other compensation arrangement with each executive officer of any
Loan Party or any of its Subsidiaries.
(xix) A favorable opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇,
counsel for the Loan Parties, in substantially the form of Exhibit K
hereto and as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
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(xx) A favorable opinion of local counsel listed on Schedule
3.01(p)(xx), in the jurisdictions listed on Schedule 3.01(p)(xx), in
form and substance satisfactory to the Administrative Agent and as
to such other matters as any Lender Party through the Administrative
Agent may reasonably request.
(xxi) A favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, intellectual
property counsel to the Lender Parties, in substantially the form of
Exhibit L hereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(xxii) A favorable opinion of Shearman & Sterling, counsel for
the Arrangers and the Agents, in form and substance satisfactory to
the Arrangers and the Agents.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance.
The obligation of each Appropriate Lender to make an Advance (other than a
Letter of Credit Advance made by an Issuing Bank or a Working Capital Lender
pursuant to Section 2.03(c)) on the occasion of each Borrowing (including the
initial Borrowing), and the obligation of each Issuing Bank to issue a Letter of
Credit (including the initial issuance), shall be subject to the further
conditions precedent that on the date of such Borrowing or issuance (a) the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing or Notice of Issuance and the acceptance by the Borrower of
the proceeds of such Borrowing or of such Letter of Credit shall constitute a
representation and warranty by the Borrower that both on the date of such notice
and on the date of such Borrowing or issuance such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date, before and after giving
effect to such Borrowing or issuance and to the application of the
proceeds therefrom, as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result from
such Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes a Default; and
(iii) in the case of any Working Capital Borrowing the proceeds of
which are to be used to make an acquisition or to refinance the costs of
construction of a New Center, (A) after giving effect to the acquisition
to be made, or costs of construction to be refinanced, with the proceeds
of such Borrowing, the Borrower shall be in pro forma compliance with the
covenants contained in Section 5.04, calculated based on the most recent
Financial Statements (and including, for purposes of determining such pro
forma compliance, the Debt and Modified Consolidated
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EBITDA attributable to the bowling center being so acquired or refinanced
as though such acquisition or construction had occurred at the beginning
of the 12-month period covered by such Financial Statements), and (B) the
Borrower shall have delivered a certificate to the Administrative Agent
and the Lender Parties in form satisfactory to the Administrative Agent
demonstrating compliance with clause (A) above;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative Agent
may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
SECTION 3.04. Conditions Precedent to the Making of the New AXELs
Series B Advances. The obligation of each New AXELs Series B Lender to make a
New AXELs Series B Advance hereunder is subject to the satisfaction of the
following conditions precedent before or concurrently with the making of such
New AXELs Series B Advance:
(a) Before and after giving effect to the First Amendment and the
transactions contemplated thereby, there shall have occurred no Material
Adverse Change since December 31, 1995.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
would be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of this
Agreement, any Note, any other Loan Document, any First Amendment
Document, any Related Document or the consummation of the transactions
contemplated hereby.
(c) All governmental and third party consents and approvals
necessary in connection with the First Amendment Documents and the
transactions contemplated thereby shall have been obtained (without the
imposition of any conditions that are not reasonably acceptable to the
Agents) and shall remain in effect other than such
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governmental or third party consents and approvals the failure to obtain
which shall not (x) be materially adverse to Holdings or the Borrower, in
each case together with its respective Subsidiaries, taken as a whole, (y)
affect the enforceability, validity or binding effect of any of the First
Amendment Documents required to be executed and delivered prior to or on
the Second Closing Date or (z) expose the Arrangers, the Agents or the
Lender Parties to personal liability; and no law or regulation shall be
applicable in the judgment of the Agents that restrains, prevents or
imposes materially adverse conditions upon the First Amendment Documents
and the transactions contemplated thereby.
(d) The Borrower shall have paid all accrued fees of the Lender
Parties and all accrued fees and expenses of the Agents and the Arrangers
(including the accrued fees and expenses of counsel to the Agents and the
Arrangers and local counsel to, and of other experts and advisors retained
by, the Agents for the Lender Parties).
(e) The Administrative Agent shall have received on or before the
day of the making of the New AXELs Series B Advances the following, each
dated such day (unless otherwise specified), in form and substance
satisfactory to the Agents (unless otherwise specified) and (except for
the AXELs Series B Notes) in sufficient copies for each Lender Party:
(i) AXELs Series B Notes payable to the order of the New AXELs
Series B Lenders.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower and each other Loan Party approving this
Agreement, the New AXELs Series B Notes, each other First Amendment
Document to which it is or is to be a party, and of all documents
evidencing other necessary corporate action and governmental and
other third party approvals and consents, if any, with respect to
this Agreement, the AXELs Series B Notes and each other First
Amendment Document.
(iii) A copy of a certificate of the Secretary of State of the
jurisdiction of its incorporation, dated reasonably near the Second
Closing Date, certifying that (A) the Borrower and each other Loan
Party have paid all franchise taxes to the date of such certificate
and (B) the Borrower and each other Loan Party are duly incorporated
and in good standing under the laws of the jurisdiction of its
incorporation.
(iv) A copy of a certificate of the Secretary of State or
Commonwealth, as the case may be, of the State of New York and the
Commonwealth of Virginia, dated reasonably near the Second Closing
Date,
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stating that the Borrower and each other Loan Party that was so
qualified as of the First Closing Date are duly qualified and in
good standing as foreign corporations in such States and have filed
all annual reports required to be filed to the date of such
certificate.
(v) A certificate of the Borrower and each other Loan Party,
signed on behalf of the Borrower and such other Loan Party by its
President or a Vice President and its Secretary or any Assistant
Secretary, dated the Second Closing Date (the statements made in
which certificate shall be true on and as of the Second Closing
Date), certifying as to (A) the absence of any amendments to the
charter of the Borrower or such other Loan Party since the date of
the Secretary of State's certificate referred to in Section
3.01(p)(iii), (B) the absence of any amendments to the bylaws of the
Borrower or such other Loan Party delivered pursuant to Section
3.01(p)(v), (C) the due incorporation and good standing of the
Borrower and such other Loan Party as a corporation organized under
the laws of the state of its incorporation, and the absence of any
proceeding for the dissolution or liquidation of the Borrower or
such other Loan Party, (D) the truth of the representations and
warranties contained in the Loan Documents as though made on and as
of the Second Closing Date and (E) the absence of any event
occurring and continuing, or resulting from the making of the New
AXELs Series B Advances, that constitutes a Default.
(vi) A certificate of the Secretary or an Assistant Secretary
of the Borrower and each other Loan Party certifying the names and
true signatures of the officers of the Borrower and such other Loan
Party authorized to sign First Amendment, the AXELs Series B Notes
and each other First Amendment Document to which they are or are to
be parties and the other documents to be delivered hereunder and
thereunder.
(vii) Amendments to the Mortgages in substantially the form of
Exhibit M hereto and covering the properties listed on Part I of
Schedule 4.01(kk) and Part I of Schedule 4.01(ll), duly executed by
the appropriate Loan Party.
(viii) A favorable opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇,
special counsel for the Loan Parties, in substantially the form of
Exhibit N hereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(ix) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel
of the Borrower, in substantially the form of Exhibit O hereto and
as to such
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other matters as any Lender Party through the Administrative Agent
may reasonably request.
(x) A favorable opinion of local counsel in the Commonwealth
of Virginia, in form and substance satisfactory to the
Administrative Agent and as to such other matters as any Lender
Party through the Administrative Agent may reasonably request.
(xi) A favorable opinion of Shearman & Sterling, counsel for
the Arrangers and the Agents, in form and substance satisfactory to
the Arrangers and the Agents.
SECTION 3.05. Conditions Precedent to the Effectiveness of the
Third Amendment. The effectiveness of the Third Amendment is subject to the
satisfaction of the following conditions precedent:
(a) Before and after giving effect to the Third Amendment and the
transactions contemplated thereby, there shall have occurred no Material
Adverse Change since December 31, 1996.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
would be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of this
Agreement, any Note, any other Loan Document, any Third Amendment
Document, any Related Document or the consummation of the transactions
contemplated hereby.
(c) All governmental and third party consents and approvals
necessary in connection with the Third Amendment Documents, the IPO and
the other transactions contemplated thereby shall have been obtained
(without the imposition of any conditions that are not reasonably
acceptable to the Agents) and shall remain in effect other than such
governmental or third party consents and approvals the failure to obtain
which shall not (x) be materially adverse to Holdings or the Borrower, in
each case together with its respective Subsidiaries, taken as a whole, (y)
affect the enforceability, validity or binding effect of any of the Third
Amendment Documents required to be executed and delivered prior to or on
the Fourth Closing Date or (z) expose the Arrangers, the Agents or the
Lender Parties to personal liability; and no law or regulation shall be
applicable in the judgment of the Agents that restrains, prevents or
imposes materially adverse conditions upon the Third Amendment Documents
and the transactions contemplated thereby.
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(d) Nothing shall have come to the attention of the Lender
Parties during the course of their due diligence investigation to lead
them to believe that the Information Memorandum was or has become
misleading, incorrect or incomplete in any material respect; the IPO
shall have been consummated and Parent shall have received Gross Cash
Proceeds therefrom of at least $200,000,000; and Parent shall have
contributed the Net Cash Proceeds therefrom to the Borrower as common
equity.
(e) The Borrower shall have paid all accrued fees of the
Existing Lenders and the Lender Parties and all accrued fees and
expenses of the Agents and the Arrangers (including the accrued fees
and expenses of counsel to the Agents and the Arrangers and local
counsel to, and of other experts and advisors retained by, the Agents
for the Lender Parties).
(f) The Administrative Agent shall have received on or before
the Fourth Closing Date, each dated such day (unless otherwise
specified), in form and substance satisfactory to the Agents the
following (unless otherwise specified) and (except for the Working
Capital Notes) in sufficient copies for each Lender Party:
(i) Working Capital Notes payable to the order of the
Working Capital Lenders;
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower and each other Loan Party
approving this Agreement, the Working Capital Notes, each
other Third Amendment Document to which it is or is to be a
party and, in the case of Parent, approving the IPO, and of
all documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if
any, with respect to the IPO, this Agreement, the Working
Capital Notes and each other Third Amendment Document.
(iii) (A) In the case of Parent, the Borrower and AMF
Bowling Products, a copy of a certificate of the Secretary of
State of the jurisdiction of its incorporation, dated
reasonably near the Fourth Closing Date, listing the charter
of each such entity and each amendment thereto on file in his
office and certifying that (1) such amendments are the only
amendments to such entity's charter on file in his office, (2)
each such entity has paid all franchise taxes to the date of
such certificate and (3) each such entity is duly incorporated
and in good standing under the laws of the jurisdiction of its
incorporation and (B) in the case of each Loan Party other
than the Borrower and AMF Bowling Products, a copy of a
certificate of the Secretary of State of the jurisdiction of
its incorporation, dated reasonably near the Fourth Closing
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Date, certifying that (1) such Loan Party has paid all
franchise taxes to the date of such certificate and (2) such
Loan Party is duly incorporated and in good standing under the
laws of the jurisdiction of its incorporation.
(iv) A copy of a certificate of the Secretary of
State or Commonwealth, as the case may be, of the State of New
York and the Commonwealth of Virginia, dated reasonably near
the Fourth Closing Date, stating that (A) the Borrower and
each other Loan Party that owns property or conducts business
in such State or Commonwealth are duly qualified and in good
standing as foreign corporations in such State or Commonwealth
and (B) have filed all annual reports required to be filed to
the date of such certificate.
(v) A certificate of the Borrower and each other Loan
Party, signed on behalf of the Borrower and such other Loan
Party by its President or a Vice President and its Secretary
or any Assistant Secretary, dated the Fourth Closing Date (the
statements made in which certificate shall be true on and as
of the Fourth Closing Date), certifying as to (A) the absence
of any amendments to the charter of the Borrower or such other
Loan Party since the date of the Secretary of State's
certificate referred to in Section 3.01(p)(iii) or
3.05(f)(iii), as applicable, (B) the absence of any amendments
to the bylaws of the Borrower or such other Loan Party
delivered pursuant to Section 3.01(p)(v), (C) the due
incorporation and good standing of the Borrower and such other
Loan Party as a corporation organized under the laws of the
state of its incorporation, and the absence of any proceeding
for the dissolution or liquidation of the Borrower or such
other Loan Party, (D) the truth of the representations and
warranties contained in the Loan Documents as though made on
and as of the Fourth Closing Date and (E) the absence of any
event occurring and continuing, or resulting from the
consummation of the IPO or the other transactions contemplated
by the Loan Documents, that constitutes a Default.
(vi) A certificate of the Secretary or an Assistant
Secretary of the Borrower and each other Loan Party certifying
the names and true signatures of the officers of the Borrower
and such other Loan Party authorized to sign the Third
Amendment, the Working Capital Notes and each other Third
Amendment Document to which they are or are to be parties and
the other documents to be delivered hereunder and thereunder.
(vii) With respect to each state in which Mortgages
have been filed, either:
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(A) A letter of local counsel in each state
in which Mortgages have been filed (such local
counsel to be acceptable to the Administrative Agent)
to the effect that, under the law of such state and
assuming that, after giving effect to the Third
Amendment and the transactions contemplated thereby,
so long as (i) the aggregate principal amount of
Obligations secured by the Mortgages has not been
increased, and (ii) the latest Termination Date for
the Facilities has not been extended, no amendment to
any Mortgage filed in such state shall be required to
perfect and maintain the validity, effectiveness and
priority of such Mortgage and the Mortgage liens and
security interests created thereunder, or
(B) amendments to the Mortgages in form and
substance satisfactory to the Collateral Agent and
covering the properties located in such state, duly
executed by the appropriate Loan Party.
(viii) duly executed financing statements and
amendments to the financing statements referred to in Section
3.01(p)(vii)(B), to be filed in all jurisdictions that the
Collateral Agent may deem necessary or desirable in order to
preserve and protect the first priority liens and security
interests created under the Collateral Documents.
(ix) evidence that Parent, the Borrower and AMF
Bowling Products have each filed appropriate forms with the
Patent and Trademark Office registering their respective name
changes.
(x) a revised Schedule 4.01(mm) supplementing the
Schedule 4.01(mm) delivered on the First Closing Date in order
to properly reflect the information contained in such Schedule
as of the Fourth Closing Date.
(xi) A favorable opinion of Wachtell, Lipton, ▇▇▇▇▇ &
▇▇▇▇, special counsel for the Loan Parties, in substantially
the form of Exhibit R hereto and as to such other matters as
any Lender Party through the Administrative Agent may
reasonably request.
(xii) A favorable opinion of local counsel in the
Commonwealth of Virginia in form and substance satisfactory to
the Administrative Agent and as to such other matters as any
Lender Party through the Administrative Agent may reasonably
request.
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(xiii) A favorable opinion of Shearman & Sterling,
counsel for the Arrangers and the Agents, in form and
substance satisfactory to the Arrangers and the Agents.
SECTION 3.06. Determinations Under Sections 3.04 and 3.05. For
purposes of determining compliance with the conditions specified in Sections
3.04 and 3.05, each Appropriate Lender shall be deemed to have consented to,
approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Appropriate Lenders unless an officer of the Administrative
Agent responsible for the transactions contemplated by the Loan Documents shall
have received notice from such Lender Party prior to the making of the New AXELs
Series B Advances or the Fourth Closing Date, as the case may be, specifying its
objection thereto and, in the case of Section 3.04, such Lender Party shall not
have made available to the Administrative Agent such Lender Party's ratable
portion of such AXELs Series B Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which
it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so
qualify or be licensed could not be reasonably likely to have a
Material Adverse Effect and (iii) has all requisite corporate power and
authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted. All of the outstanding capital stock of Parent, Holdings and
the Borrower has been validly issued, is fully paid and non-assessable
and, as of the First Closing Date, or from and after the delivery of an
updated Schedule pursuant to Section 5.01(t)(iii), as of the Fourth
Closing Date, is owned by the Equity Investors in the amounts specified
on Schedule 4.01(a) or by Parent or Holdings, as the case may be. All
of the outstanding capital stock of Parent is owned, as of the First
Closing Date, or from and after the delivery of an updated Schedule
pursuant to Section 5.01(t)(iii), as of the Fourth Closing Date, free
and clear of all Liens, except the pledge of such capital stock as is
owned by management of the Borrower to secure obligations of such
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management owing to Parent. All of the outstanding capital stock of
Holdings and the Borrower is owned, in each case free and clear of all
Liens, except, in the case of the capital stock of the Borrower, those
created under the Collateral Documents.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as of the
First Closing Date, or from and after the delivery of an updated
Schedule pursuant to Section 5.01(t)(iii), as of the Fourth Closing
Date, (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of capital stock
authorized, and the number outstanding, on the First Closing Date, or
from and after the delivery of an updated Schedule pursuant to Section
5.01(t)(iii), on the Fourth Closing Date, and the percentage of the
outstanding shares of each such class owned (directly or indirectly) by
such Loan Party and the number of shares covered by all outstanding
options, warrants, rights of conversion or purchase and similar rights
at the First Closing Date, or from and after the delivery of an updated
Schedule pursuant to Section 5.01(t)(iii), at the Fourth Closing Date.
All of the outstanding capital stock of all of such Subsidiaries has
been validly issued and is fully paid and non-assessable; and such
capital stock (other than directors' qualifying shares), as of the
First Closing Date, or from and after the delivery of an updated
Schedule pursuant to Section 5.01(t)(iii), as of the Fourth Closing
Date, is owned by such Loan Party or one or more of its Subsidiaries,
other than the China Joint Venture, the capital stock of which is owned
by a Loan Party or one or more of its Subsidiaries in the amount and
percentage ownership set forth on Schedule 4.01(b) hereto. All of such
outstanding capital stock to the extent owned by a Loan Party is owned
in each case free and clear of all Liens, except those created under
the Loan Documents. Each such Subsidiary (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which
it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so
qualify or be licensed could not be reasonably likely to have a
Material Adverse Effect and (iii) has all requisite corporate power and
authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted.
(c) The execution, delivery and performance by each Loan Party
of this Agreement, the Notes, each other Loan Document and each Related
Document to which it is or is to be a party (after the execution and
delivery thereof as and when required under this Agreement), and the
consummation of the Acquisition and the other transactions contemplated
hereby, are within such Loan Party's corporate powers, have been duly
authorized by all necessary corporate action, and do not (i) contravene
such Loan Party's charter or bylaws, (ii) violate any law (including,
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without limitation, the Securities Exchange Act of 1934 and the
Racketeer Influenced and Corrupt Organizations Chapter of the Organized
Crime Control Act of 1970), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of,
or constitute a default under, any loan agreement, indenture, mortgage,
deed of trust or other instrument or material contract or material
lease binding on or affecting any Loan Party, any of its Subsidiaries
or any of their properties or (iv) except for the Liens created under
the Loan Documents, result in or require the creation or imposition of
any Lien upon or with respect to any of the properties of any Loan
Party or any of its Subsidiaries. No Loan Party or any of its
Subsidiaries is in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or in breach
of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which
could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of this
Agreement, the Notes, any other Loan Document or any Related Document
to which it is or is to be a party, or for the consummation of the
Acquisition or the other transactions contemplated hereby, (ii) the
grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents, (iii) the perfection or maintenance of the Liens
created by the Collateral Documents (including the first priority
nature thereof) or (iv) the exercise by any Agent or any Lender Party
of its rights under the Loan Documents or the remedies in respect of
the Collateral pursuant to the Collateral Documents, except for the
authorizations, approvals, actions, notices and filings listed on
Schedule 4.01(d) hereto, all of which have been duly obtained, taken,
given or made and are in full force and effect except as otherwise set
forth on Schedule 4.01(d) hereto and except those authorizations,
approvals, actions, notices and filings the failure to obtain, take,
give or make which, either individually or in the aggregate, could not
be reasonably expected to have a Material Adverse Effect. All
applicable waiting periods in connection with the Acquisition and the
other transactions contemplated hereby have expired or been terminated
without any action having been taken by any competent authority
restraining, preventing or imposing materially adverse conditions upon
the Acquisition or the rights of the Loan Parties or their Subsidiaries
freely to transfer or otherwise dispose of, or to create any Lien on,
any properties now owned or hereafter acquired by any of them except
where, in the case of any such waiting period other than any waiting
period required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended, the failure of such waiting period to have expired
without any
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such action having been taken could not be reasonably likely to have a
Material Adverse Effect.
(e) This Agreement has been, and each of the Notes, each other
Loan Document and each Related Document when delivered hereunder will
have been, duly executed and delivered by each Loan Party party
thereto. This Agreement is, and each of the Notes, each other Loan
Document and each Related Document when delivered hereunder will be,
the legal, valid and binding obligation of each Loan Party party
thereto, enforceable against such Loan Party in accordance with its
terms.
(f) (i) The Consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1996, and the related Consolidated
statements of income and cash flows of the Company and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, L.L.P, independent public accountants, copies of which have
been furnished to each Lender Party, fairly present the Consolidated
financial condition of the Company and its Subsidiaries as at such date
and the Consolidated results of the operations of the Company and its
Subsidiaries for the period ended on such date, all in accordance with
generally accepted accounting principles applied on a consistent basis,
and since December 31, 1996, there has been no Material Adverse Change.
(ii) The Consolidated balance sheets of the Borrower
and its Subsidiaries as at June 30, 1997, and the related
Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the six months then ended,
certified by a Designated Financial Officer, copies of which
have been furnished to each Lender Party, fairly present,
subject to year-end audit adjustments, the Consolidated
financial condition of the Borrower and its Subsidiaries as at
such date and the Consolidated results of operations of the
Borrower and its Subsidiaries for the period ended on such
date, all in accordance with generally accepted accounting
principles applied on a consistent basis.
(g) The Consolidated pro forma balance sheet of the Borrower
and its Subsidiaries as at December 31, 1995, and the related
Consolidated pro forma statements of income and cash flows of the
Borrower and its Subsidiaries for the year then ended, certified by a
Designated Financial Officer, copies of which have been furnished to
each Lender Party, fairly present the Consolidated pro forma financial
condition of the Borrower and its Subsidiaries as at such date and the
Consolidated pro forma results of operations of the Borrower and its
Subsidiaries for the period ended on such date, in each case giving
effect to the Acquisition and the other transactions contemplated
hereby, all in accordance with GAAP.
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(h) The Consolidated forecasted balance sheets, income
statements and cash flows statements of the Borrower and its
Subsidiaries delivered to the Lender Parties pursuant to Section
3.01(p)(xiii) or 5.03 were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair in the light of
conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Borrower's best estimate of
its future financial performance.
(i) Neither the Information Memorandum nor any other
information, exhibit or report furnished by any Loan Party to any Agent
or any Lender Party in connection with the negotiation and syndication
of the Loan Documents or pursuant to the terms of the Loan Documents
contained any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements made therein not
misleading.
(j) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries,
including any Environmental Action, pending or threatened before any
court, governmental agency or arbitrator that (i) would be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of the Acquisition, this
Agreement, any Note, any other Loan Document or any Related Document or
the consummation of the transactions contemplated hereby (other than
any such action, suit, investigation, litigation or proceeding that, in
the judgment of the Agents, is frivolous).
(k) No proceeds of any Advance or drawings under any Letter of
Credit will be used to acquire any equity security of a class that is
registered pursuant to Section 12 of the Securities Exchange Act of
1934.
(l) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance or drawings under any Letter of Credit will be
used to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock.
(m) Set forth on Schedule 4.01(m) hereto is a complete and
accurate list, as of the First Closing Date, or from and after the
delivery of an updated Schedule pursuant to Section 5.01(t)(iii), as of
the Fourth Closing Date, of all Plans, Multiemployer Plans and Welfare
Plans.
(n) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan that could be reasonably expected to
have a Material Adverse Effect.
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(o) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 90% and there has been no material adverse change
in the funding status of such Plan since such date.
(p) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan, copies of which have
been filed with the Internal Revenue Service and furnished to the
Lender Parties, is complete and accurate and fairly presents the
funding status of such Plan, and since the date of such Schedule B
there has been no material adverse change in such funding status.
(q) Neither any Loan Party nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal Liability to
any Multiemployer Plan that could be reasonably expected to have a
Material Adverse Effect.
(r) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the
meaning of Title IV of ERISA, except to the extent that any such
reorganization or termination could not be reasonably expected to have
a Material Adverse Effect.
(s) With respect to each scheme or arrangement mandated by a
government other than the United States (a "Foreign Government Scheme
or Arrangement") and with respect to each employee benefit plan
maintained or contributed to by any Loan Party or any Subsidiary of any
Loan Party that is not subject to United States law (a "Foreign Plan")
to the extent that there could reasonably be expected to be a Material
Adverse Effect:
(i) Any employer and employee contributions required
by law or by the terms of any Foreign Government Scheme or
Arrangement or any Foreign Plan have been made, or, if
applicable, accrued, in accordance with normal accounting
practices.
(ii) The fair market value of the assets of each
funded Foreign Plan, the liability of each insurer for any
Foreign Plan funded through insurance or the book reserve
established for any Foreign Plan, together with any accrued
contributions, is sufficient to procure or provide for the
accrued benefit obligations, as of the First Closing Date, or
from and after the delivery of an updated Schedule pursuant to
Section 5.01(t)(iii), as of the Fourth Closing Date, with
respect to all current and former participants in such Foreign
Plan
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according to the actuarial assumptions and valuations most
recently used to determine employer contributions to such
Foreign Plan.
(iii) Each Foreign Plan required to be registered has
been registered and has been maintained in good standing with
applicable regulatory authorities.
(t) Except as set forth in the financial statements referred
to in this Section 4.01 and in Section 5.03, the Loan Parties and their
respective Subsidiaries have no material liability with respect to
"expected post retirement benefit obligations" within the meaning of
Statement of Financial Accounting Standards No. 106.
(u) Neither the business nor the properties of any Loan Party
or any of its Subsidiaries have been affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that could be reasonably
likely to have a Material Adverse Effect.
(v) Except as set forth on Schedule 4.01(v) hereto or as could
not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, the operations and properties of each Loan
Party and each of its Subsidiaries comply with all applicable
Environmental Laws and Environmental Permits, and (except as aforesaid)
all past non-compliance with such Environmental Laws and Environmental
Permits has been resolved without ongoing obligations or costs, and no
circumstances exist that could be reasonably likely to (i) form the
basis of an Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties that could have a Material
Adverse Effect or (ii) cause any such property to be subject to any
material restrictions on ownership, occupancy, use or transferability
under any Environmental Law.
(w) Except as set forth on Schedule 4.01(w) hereto or as could
not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, (i) none of the properties currently owned or
operated by any Loan Party or any of its Subsidiaries or, to the best
knowledge of any Loan Party or any of its Subsidiaries, none of the
properties formerly owned or operated by any of them, is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property; (ii)
there are no and never have been any underground or aboveground storage
tanks or any surface impoundments, septic tanks, pits, sumps or lagoons
in which Hazardous Materials are being or have been treated, stored or
disposed on any property currently owned or operated by any Loan Party
or any of its Subsidiaries or, to the best of its knowledge, on any
property formerly owned or operated by any Loan Party or any of its
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Subsidiaries; (iii) there is no asbestos or asbestos-containing
material on any property currently owned or operated by any Loan Party
or any of its Subsidiaries; and (iv) Hazardous Materials have not been
released, discharged or disposed of on any property currently or
formerly owned or operated by any Loan Party or any of its
Subsidiaries.
(x) Except as set forth on Schedule 4.01(x) hereto or as could
not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, neither any Loan Party nor any of its
Subsidiaries is undertaking, or has failed to complete, either
individually or together with other potentially responsible parties,
any investigation or assessment or remedial or response action relating
to any actual or threatened release, discharge or disposal of Hazardous
Materials at any site, location or operation, either voluntarily or
pursuant to the order of any governmental or regulatory authority or
the requirements of any Environmental Law; and all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or
from, any property currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries, and that have been disposed of in any
manner, have been disposed of only in a manner not reasonably expected
to result in a Material Adverse Effect.
(y) Neither any Loan Party nor any of its Subsidiaries is a
party to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or corporate
restriction that could be reasonably likely to have a Material Adverse
Effect.
(z) The Collateral Documents create a valid and perfected
first priority security interest in the Collateral subject only to
Permitted Encumbrances, securing the payment of the Secured Obligations
(as defined in the Collateral Documents), and all filings and other
actions necessary or desirable to perfect and protect such security
interest have been duly taken. The Loan Parties are the legal and
beneficial owners of the Collateral free and clear of any Lien, except
for the liens and security interests created or permitted under the
Loan Documents.
(aa) Each Loan Party and each of its Subsidiaries has filed,
has caused to be filed or has been included in all federal income and
other material tax returns (Federal, state, local and foreign) required
to be filed and has paid all income and other material taxes shown
thereon to be due, together with applicable interest and penalties.
(bb) Set forth on Schedule 4.01(bb) hereto is a complete and
accurate list, as of the First Closing Date, or from and after the
delivery of an updated Schedule pursuant to Section 5.01(t)(iii), as of
the Fourth Closing Date, of each taxable year of
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each Loan Party and each of its Subsidiaries for which Federal income
tax returns have been filed and for which the expiration of the
applicable statute of limitations for assessment or collection has not
occurred by reason of extension or otherwise (an "Open Year").
(cc) As of the First Closing Date, or from and after the
delivery of an updated Schedule pursuant to Section 5.01(t)(iii), as of
the Fourth Closing Date, there are no adjustments to the Federal income
tax liability of each Loan Party and each of its Subsidiaries proposed
by the Internal Revenue Service with respect to Open Years that,
individually or in the aggregate, could be reasonably likely to have a
Material Adverse Effect. No issues have been raised by the Internal
Revenue Service in respect of Open Years that, in the aggregate, could
be reasonably likely to have a Material Adverse Effect.
(dd) As of the First Closing Date, or from and after the
delivery of an updated Schedule pursuant to Section 5.01(t)(iii), as of
the Fourth Closing Date, there are no adjustments to the state, local
and foreign tax liability of each Loan Party and its Subsidiaries
proposed by all state, local and foreign taxing authorities (other than
amounts arising from adjustments to Federal income tax returns) that,
individually or in the aggregate, could be reasonably likely to have a
Material Adverse Effect. No issues have been raised by such taxing
authorities that, in the aggregate, could be reasonably likely to have
a Material Adverse Effect.
(ee) The Acquisition will not result in the imposition of
federal income taxes on or with respect to the Borrower.
(ff) Except as a direct result of the Acquisition and the
acquisition by AMF Bowling Centers of the companies set forth on
Schedule 4.01(ff) hereto, no "ownership change" as defined in Section
382(g) of the Internal Revenue Code, and no event that would result in
the application of the "separate return limitation year" or
"consolidated return change of ownership" limitations under the Federal
income tax consolidated return regulations, has occurred with respect
to the Borrower or the Company since May 1, 1993.
(gg) Neither any Loan Party nor any of its Subsidiaries is an
"investment company," or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment
Company Act of 1940, as amended. Neither the making of any Advances,
nor the issuance of any Letters of Credit, nor the application of the
proceeds or repayment thereof by the Borrower, nor the consummation of
the other transactions contemplated hereby, will violate any provision
of such Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder.
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(hh) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(ii) Set forth on Schedule 4.01(ii) hereto is a complete and
accurate list of all Existing Debt (other than Surviving Debt), showing
as of the First Closing Date, or from and after the delivery of an
updated Schedule pursuant to Section 5.01(t)(iii), as of the Fourth
Closing Date, the principal amount outstanding thereunder.
(jj) Set forth on Schedule 3.01(e) hereto is a complete and
accurate list of all Surviving Debt, showing as of the First Closing
Date, or from and after the delivery of an updated Schedule pursuant to
Section 5.01(t)(iii), as of the Fourth Closing Date, the principal
amount outstanding thereunder, the maturity date thereof and the
amortization schedule therefor.
(kk) Set forth on Schedule 4.01(kk) hereto is a complete and
accurate list of all real property owned by any Loan Party or any of
its Subsidiaries, showing as of the First Closing Date, or from and
after the delivery of an updated Schedule pursuant to Section
5.01(t)(iii), as of the Fourth Closing Date, the street address, county
or other relevant jurisdiction, state, record owner and book value
thereof. Each Loan Party or such Subsidiary has good, marketable and
insurable fee simple title to such real property, free and clear of all
Liens, other than Liens created or permitted by the Loan Documents.
(ll) Set forth on Schedule 4.01(ll) hereto is a complete and
accurate (in the case of leases of real property outside the United
States, in all material respects) list of all leases of real property
under which any Loan Party or any of its Subsidiaries is the lessee,
showing as of the First Closing Date, or from and after the delivery of
an updated Schedule pursuant to Section 5.01(t)(iii), as of the Fourth
Closing Date, the street address, county or other relevant
jurisdiction, state, lessor, lessee, expiration date and annual rental
cost thereof. Each such lease is the legal, valid and binding
obligation of the lessee thereof, enforceable in accordance with its
terms.
(mm) Set forth on Schedule 4.01(mm) hereto is a complete and
accurate list of all Investments held by any Loan Party or any of its
Subsidiaries, showing as of the First Closing Date, or from and after
the delivery of an updated Schedule pursuant to Section 5.01(t)(iii),
as of the Fourth Closing Date, the amount, obligor or issuer and
maturity, if any, thereof.
(nn) Set forth on Schedule 4.01(nn) hereto is a complete and
accurate list of all patents, trademarks, trade names, service marks
and copyrights, and all applications therefor and licenses thereof, of
each Loan Party or any of its Subsidiaries, showing as of the First
Closing Date, or from and after the delivery of
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an updated Schedule pursuant to Section 5.01(t)(iii), as of the Fourth
Closing Date, the jurisdiction in which registered, the registration
number, the date of registration and the expiration date, and the Loan
Parties and their Subsidiaries own or have a license to use all
patents, trademarks, trade names, service marks and copyrights
reasonably necessary to carry on their business as now conducted and as
proposed to be conducted.
(oo) The Debt of the Loan Parties under the Loan Documents
constitutes "Senior Debt" as such term is defined in the Subordinated
Notes Indentures.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and the Racketeer Influenced
and Corrupt Organizations Chapter of the Organized Crime Control Act of
1970, except, in any case, where the failure so to comply, either
individually or in the aggregate, could not be reasonably expected to
have a Material Adverse Effect and would not be reasonably likely to
subject any Loan Party or any of its Subsidiaries to any criminal
penalties or any Lender Party to any civil or criminal penalties.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all federal income and other material taxes,
assessments and governmental charges or levies imposed upon it or upon
its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim (x) that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained or (y) in respect of which
the Lien resulting therefrom, if any, attaches to its property and
becomes enforceable against its other creditors, to the extent that the
aggregate amount of all such taxes, assessments, charges or claims does
not exceed $3,000,000.
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(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
Environmental Laws and Environmental Permits; obtain and renew and
cause each of its Subsidiaries to obtain and renew, when legally
required, all Environmental Permits necessary for its operations and
properties; and conduct, and cause each of its Subsidiaries to conduct,
any required investigation, study, sampling and testing, and undertake
any required cleanup, removal, remedial or other action necessary to
remove and clean up all Hazardous Materials from any of its properties,
only in accordance with the requirements of all Environmental Laws;
except, in any case under this subsection (c), where the failure to so
comply with or perform any of the foregoing, either individually or in
the aggregate, could not be reasonably expected to have a Material
Adverse Effect and would not be reasonably likely to subject any Loan
Party or any of its Subsidiaries to any criminal penalties or any
Lender Party to any civil or criminal penalties; provided, however,
that neither the Borrower nor any of its Subsidiaries shall be required
to undertake any such cleanup, removal, remedial or other action to the
extent that its obligation to do so is being contested in good faith
and by proper proceedings and appropriate reserves are being maintained
with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its existence, legal structure, legal name, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises;
provided, however, that the Borrower and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(d);
provided further that neither the Borrower nor any of its Subsidiaries
shall be required to preserve any right, permit, license, approval,
privilege or franchise if the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Borrower or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary or the Lender Parties
or, with respect to permits, licenses, approvals, privileges and
franchises, that the loss thereof could not be reasonably expected to
have a Material Adverse Effect.
(f) Visitation Rights. At any reasonable time and from time to
time, permit any Agent or any of the Lender Parties or any agents or
representatives
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thereof, to examine and make copies of and abstracts from the records
and books of account of, and visit the properties of, the Borrower and
any of its Subsidiaries, and to discuss the affairs, finances and
accounts of the Borrower and any of its Subsidiaries with any of their
officers or directors and with their independent certified public
accountants.
(g) Preparation of Environmental Reports. At the request of
the Administrative Agent upon the occurrence and during the continuance
of a Default or upon the reasonable belief of the Required Lenders or
the Administrative Agent that Hazardous Materials contamination of a
nature or to an extent not set forth on Schedule 4.01(v), 4.01(w) or
4.01(x) hereto may be present on any property described in the
Mortgages in a manner or condition that could reasonably be expected to
have a Material Adverse Effect, provide to the Lender Parties within 60
days after such request, at the expense of the Borrower, an
environmental site assessment report for any of its or its
Subsidiaries' properties described in the Mortgages, prepared by an
environmental consulting firm acceptable to the Administrative Agent,
indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance, removal or remedial action in
connection with any Hazardous Materials on such properties; without
limiting the generality of the foregoing, if the Required Lenders
reasonably determine at any time that a material risk exists that any
such report will not be provided within the time referred to above, the
Required Lenders may retain an environmental consulting firm to prepare
such report at the expense of the Borrower, and the Borrower hereby
grants and agrees to cause any Subsidiary that owns any property
described in the Mortgages to grant at the time of such request, to the
Agents, the Lender Parties, such firm and any agents or representatives
thereof an irrevocable non-exclusive license, subject to the rights of
tenants, to enter onto their respective properties to undertake such an
assessment at any reasonable time and upon reasonable prior notice.
(h) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(i) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted,
except where the failure to do so, either individually or in the
aggregate, could not be reasonably expected to have a Material Adverse
Effect.
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(j) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which the Borrower or any of its Subsidiaries is a party,
keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be
forfeited or cancelled, notify the Administrative Agent of any default
by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and
cause each of its Subsidiaries to do so, except, in any case, where the
failure to do so, either individually or in the aggregate, could not be
reasonably expected to have a Material Adverse Effect.
(k) Performance of Related Documents. Perform and observe all
of the terms and provisions of each Related Document to be performed or
observed by it, maintain each such Related Document in full force and
effect, enforce such Related Document in accordance with its terms
(other than Section 1.5 of the Stockholders' Agreement), take all such
action to such end as may be from time to time requested by the
Administrative Agent and, upon request of the Administrative Agent,
make to each other party to each such Related Document such demands and
requests for information and reports or for action as the Borrower is
entitled to make under such Related Document, and cause each of its
Subsidiaries to do so, except, in any case, where the failure to do so,
either individually or in the aggregate, could not be reasonably
expected to have a Material Adverse Effect.
(l) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates on terms that are fair
and reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate, other than transactions between or among Loan
Parties and other transactions described on Schedule 5.01(l) hereto.
(m) Cash Concentration Accounts. Maintain main cash
concentration accounts with Citibank and Blocked Accounts into which
substantially all proceeds of Collateral are paid with Citibank or one
or more banks acceptable to the Collateral Agent that have accepted the
assignment of such accounts to the Collateral Agent for the benefit of
the Secured Parties pursuant to the Security Agreement.
(n) Covenant to Guarantee Obligations and Give Security. At
any time (x) upon the request of the Collateral Agent following the
occurrence and during the continuance of a Default, (y) at such time as
any new direct or indirect Subsidiaries of the Borrower are formed or
acquired by any Loan Party or (z) any property is acquired by any Loan
Party, in each case at the expense of the Borrower:
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(i) within 10 days after such request, formation or
acquisition, cause each such Subsidiary (other than any
Foreign Subsidiary), and cause each direct and indirect parent
(other than the Borrower and any Foreign Subsidiary) of such
Subsidiary (if it has not already done so), to duly execute
and deliver to the Collateral Agent a guaranty, in form and
substance satisfactory to the Collateral Agent, guaranteeing
the other Loan Parties' Obligations under the Loan Documents,
(ii) within 10 days after such request, formation or
acquisition, furnish to the Collateral Agent a description of
the real and personal properties of the Borrower and its
Subsidiaries in detail satisfactory to the Collateral Agent,
(iii) within 15 days after such request, formation or
acquisition, duly execute and deliver, and cause each such
Subsidiary (other than any Foreign Subsidiary) and each direct
and indirect parent of such Subsidiary (if it has not already
done so) (other than any Foreign Subsidiary except to the
extent permitted in the fourth proviso below) to duly execute
and deliver, to the Collateral Agent mortgages, pledges,
assignments and other security agreements, as specified by and
in form and substance satisfactory to the Collateral Agent,
securing payment of all the Obligations of the Borrower, such
Subsidiary or such parent, as the case may be, under the Loan
Documents and constituting Liens on all such properties;
provided that with respect to any leasehold, the Borrower
shall use, and shall cause its Subsidiaries to use, best
efforts to acquire such leasehold in a way such that consent
of the landlord thereof shall not be required in connection
with the mortgaging thereof; provided further, however, that
such leasehold shall not be required to be mortgaged if, after
the applicable Loan Party has used its best efforts as set
forth in the immediately preceding proviso and to obtain
landlord consents to the extent required by Section 5.01(p),
such Loan Party is unable to obtain such consent; provided
still further that, so long as no Event of Default shall have
occurred and be continuing, such leasehold shall not be
required to be mortgaged if the Collateral Agent shall
determine, in its sole discretion, not to require the
mortgaging of such leasehold because such leasehold has an
immaterial value or constitutes an immaterial portion of the
property of the Person owning such leasehold; provided still
further that, with respect to the pledge of the capital stock
of any Foreign Subsidiary, such pledge shall cover not more
than 66% of the outstanding capital stock of such Foreign
Subsidiary if it is directly owned by a Loan Party and not
cover any of the outstanding capital stock of such Foreign
Subsidiary if it is directly or indirectly owned by another
Foreign Subsidiary,
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(iv) within 30 days after such request, formation or
acquisition, take, and cause such Subsidiary (other than any
Foreign Subsidiary) or such parent (other than any Foreign
Subsidiary) to take, whatever action (including, without
limitation, the recording of mortgages, the filing of Uniform
Commercial Code financing statements, the giving of notices
and the endorsement of notices on title documents) may be
necessary or advisable in the opinion of the Collateral Agent
to vest in the Collateral Agent (or in any representative of
the Collateral Agent designated by it) valid and subsisting
Liens on the properties purported to be subject to the
mortgages, pledges, assignments and security agreements
delivered pursuant to this Section 5.01(n), enforceable
against all third parties in accordance with their terms,
(v) within 60 days after such request, formation or
acquisition, deliver to the Collateral Agent, upon the request
of the Collateral Agent in its sole discretion, a signed copy
of a favorable opinion, addressed to the Collateral Agent and
the other Secured Parties, of counsel for the Loan Parties
acceptable to the Collateral Agent as to the matters contained
in clauses (i), (iii) and (iv) above, as to such guaranties,
mortgages, pledges, assignments and security agreements being
legal, valid and binding obligations of each Loan Party party
thereto enforceable in accordance with their terms and as to
such other matters as the Collateral Agent may reasonably
request,
(vi) as promptly as practicable after such request,
formation or acquisition, deliver, upon the request of the
Collateral Agent in its sole discretion, to the Collateral
Agent (x) with respect to each parcel of real property owned
or held by the entity (other than any Foreign Subsidiary) that
is the subject of such request, formation or acquisition and
on which a manufacturing facility is located, surveys and
engineering, soils and other reports meeting the criteria
specified in Section 3.01(p)(ix)(C) or (D), as the case may
be, Mortgage Policies and an environmental assessment report
meeting the criteria specified in Section 3.01(p)(xv) and (y)
with respect to each other parcel of real property owned by
the entity that is the subject of such request, formation or
acquisition, title reports meeting the criteria specified in
Section 3.01(p)(ix)(B), provided, however, that to the extent
that the Borrower or any of its Subsidiaries shall have
otherwise received any of the foregoing items with respect to
such real property, such items shall promptly after the
receipt thereof be delivered to the Collateral Agent,
(vii) upon the occurrence and during the continuance
of a Default, promptly cause to be deposited, and cause each
of its Subsidiaries to cause to be promptly deposited, any and
all cash dividends paid or payable to it or any of its
Subsidiaries from any of its Subsidiaries from time to time
into the Cash
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Collateral Account, and with respect to all other dividends
paid or payable to it or any of its Subsidiaries from time to
time, promptly execute and deliver, or cause such Subsidiary
to promptly execute and deliver, as the case may be, any and
all further instruments and take or cause such Subsidiary to
take, as the case may be, all such other action as the
Collateral Agent may deem necessary or desirable in order to
obtain and maintain from and after the time such dividend is
paid or payable a perfected, first priority lien on and
security interest in such dividends, and
(viii) at any time and from time to time, promptly
execute and deliver any and all further instruments and
documents and take all such other action as the Collateral
Agent may deem necessary or desirable in obtaining the full
benefits of, or in perfecting and preserving the Liens of,
such guaranties, mortgages, pledges, assignments and security
agreements.
(o) Interest Rate Hedging. Maintain at all times, until such
time as the aggregate outstanding amount under the Term Facilities
shall be less than $400,000,000, interest rate Hedge Agreements with
Persons acceptable to the Administrative Agent, covering a notional
amount of not less than 50% of the Commitments under all of the
Facilities and the other floating rate Debt of the Loan Parties and
providing for such Persons to make payments thereunder for a period of
no less than one year to the extent of increases in interest rates
greater than 3% above the weighted average Eurodollar Rate on the First
Closing Date.
(p) Landlord's Consents, Etc. With respect to leaseholds set
forth on Part II of Schedule 4.01(ll) hereto, for a reasonable period
of time after the First Closing Date, and with respect to any leasehold
acquired after the First Closing Date (other than by a Foreign
Subsidiary) for a reasonable period of time after the acquisition
thereof, use, and cause its Subsidiaries to use, its best efforts to
cure any technical defect as may be required or, in the judgment of the
Collateral Agent, necessary or desirable (as notified to such Loan
Party by the Collateral Agent) to be cured in order to permit the
mortgaging of any leasehold under which any Loan Party is a lessee and,
if a Default shall have occurred and be continuing, use, and cause its
Subsidiaries to use, its best efforts to obtain any consent required
or, in the judgment of the Collateral Agent, necessary or desirable (as
notified to such Loan Party by the Collateral Agent) to permit the
mortgaging of any leasehold under which any Loan Party is a lessee,
and, in either case, use its best efforts to deliver and cause each of
its Subsidiaries to use its best efforts to deliver, such documents and
other items referred to in Section 5.01(n) as may be applicable in
connection with the mortgaging of such leasehold.
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(q) Conditions Subsequent to Initial Extension of Credit.
Deliver to the Collateral Agent, in form and substance satisfactory to
the Collateral Agent and in sufficient copies for each Lender Party, as
soon as possible and in any event within 60 days after the Initial
Extension of Credit (or such later date as may be agreed by the
Borrower and the Collateral Agent):
(i) acknowledgment copies of proper financing
statements, duly filed under the Uniform Commercial Code of
all jurisdictions that the Collateral Agent may deem necessary
or desirable in order to perfect and protect the first
priority liens and security interests created under the
Security Agreement, covering the Collateral described in the
Security Agreement,
(ii) completed requests for information, listing the
financing statements referred to in clause (i) above and all
other effective financing statements filed in the
jurisdictions referred to in clause (i) above that name any
Loan Party as debtor, together with copies of such financing
statements,
(iii) evidence that counterparts of the Mortgages
have been duly recorded in all filing or recording offices
that the Collateral Agent may deem necessary or desirable in
order to create a valid first and subsisting Lien on the
property described therein in favor of the Secured Parties
subject only to Permitted Encumbrances and that all filing and
recording taxes and fees have been paid,
(iv) evidence of the completion of all recordings and
filings of or with respect to the Intellectual Property
Security Agreement that the Collateral Agent may deem
necessary or desirable in order to perfect and protect the
Liens created thereunder,
(v) evidence that such action as the Collateral Agent
may deem necessary or desirable in order to perfect and
protect the Liens on the capital stock held by any Loan Party
in any of its Foreign Subsidiaries has been taken (including,
without limitation, the execution and delivery by the
applicable Loan Party of such agreements or instruments of
pledge as may be necessary to perfect and protect Liens in
favor of the Collateral Agent for the benefit of the Secured
Parties on capital stock of each of the Borrower's
Subsidiaries organized under the laws of Australia), provided
that in any event such Liens shall cover not more than 66% of
the outstanding capital stock of Foreign Subsidiaries directly
owned by such Loan Party and shall not cover any capital stock
of any Foreign Subsidiary directly or indirectly owned by a
Foreign Subsidiary,
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(vi) a signed copy of a favorable opinion addressed
to the Collateral Agent and the other Secured Parties, of
counsel for the Loan Parties acceptable to the Collateral
Agent, as to the agreements and instruments of pledge referred
to in clause (v) above being the legal, valid and binding
obligation of the Loan Party thereto, enforceable in
accordance with their terms and as to such other matters as
the Collateral Agent may reasonably request,
(vii) evidence that all other action as the
Collateral Agent may deem necessary or desirable in order to
perfect and protect the first priority liens and security
interests created under the Collateral Documents has been
taken,
(viii) evidence of business interruption insurance
naming the Collateral Agent for the benefit of the Secured
Parties as insured, as is satisfactory to the Collateral
Agent, and
(ix) evidence that the Borrower shall have applied to
Standard & Poor's Ratings Group's CUSIP Service Bureau for the
assignment of private placement numbers to the Notes.
(r) Conditions Subsequent to the Making of the New AXELS
Series B Advances. Deliver to the Collateral Agent, in form and
substance satisfactory to the Collateral Agent and in sufficient copies
for each Lender Party, as soon as possible, and in any event within 60
days after the making of the New AXELs Series B Advances (or such later
date as may be agreed by the Borrower and the Collateral Agent):
(i) evidence that the First Mortgage Amendments have
been duly recorded in all filing and recording offices that
the Collateral Agent may deem necessary or desirable in order
to maintain a valid first and subsisting lien on the property
described therein in favor of the Secured Parties subject only
to Permitted Encumbrances and that all filing and recording
taxes and fees have been paid;
(ii) evidence that either (x) endorsements to the
Mortgage Policies have been provided which update the Mortgage
Policies to the Second Closing Date and which indicate no
additional exceptions to coverage under such Mortgage Policies
from those specified on the First Closing Date, or (y) such
other satisfactory assurances have been given to the
Collateral Agent that the lien priority of the Mortgages will
not be affected by the recording of the First Mortgage
Amendments and that Mortgage Policies continue to insure the
Mortgages as amended by the First Mortgage Amendments; and
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(iii) signed copies of favorable opinions of such
local counsel as the Administrative Agent may require, in form
and substance satisfactory to the Arrangers and the Agents.
(s) Conditions Subsequent to the Third Closing Date. Deliver
to the Collateral Agent, in form and substance satisfactory to the
Collateral Agent and in sufficient copies for each Lender Party, as
soon as possible, and in any event within 120 days after the Third
Closing Date (or such later date as may be agreed by the Borrower and
the Collateral Agent), with respect to each jurisdiction in which the
Second Mortgage Amendments were required to be delivered.
(i) evidence that the Second Mortgage Amendments have
been duly recorded in all filing and recording offices that
the Collateral Agent may deem necessary or desirable in order
to maintain a valid first and subsisting lien on the property
described therein in favor of the Secured Parties subject only
to Permitted Encumbrances and that all filing and recording
taxes and fees have been paid; and
(ii) evidence that either (x) endorsements to the
Mortgage Policies have been provided which update the Mortgage
Policies to the Third Closing Date and which indicate no
additional exceptions to coverage under such Mortgage Policies
from those specified on the First Closing Date, or (y) such
other satisfactory assurances have been given to the
Collateral Agent that the lien priority of the Mortgages will
not be affected by the recording of the Second Mortgage
Amendments and that Mortgage Policies continue to insure the
Mortgages as amended by the Second Mortgage Amendments.
(t) Conditions Subsequent to the Fourth Closing Date. Deliver
to the Collateral Agent, in form and substance satisfactory to the
Collateral Agent and in sufficient copies for each Lender Party, as
soon as possible, and in any event within 120 days after the Fourth
Closing Date (or such later date as may be agreed by the Borrower and
the Collateral Agent), with respect to each jurisdiction in which the
Third Mortgage Amendments were required to be delivered.
(i) evidence that the Third Mortgage Amendments have
been duly recorded in all filing and recording offices that
the Collateral Agent may deem necessary or desirable in order
to maintain a valid first and subsisting lien on the property
described therein in favor of the Secured Parties subject only
to Permitted Encumbrances and that all filing and recording
taxes and fees have been paid;
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(ii) evidence that either (x) endorsements to the
Mortgage Policies have been provided which update the Mortgage
Policies to the Fourth Closing Date and which indicate no
additional exceptions to coverage under such Mortgage Policies
from those specified on the First Closing Date, or (y) such
other satisfactory assurances have been given to the
Collateral Agent that the lien priority of the Mortgages will
not be affected by the recording of the Third Mortgage
Amendments and that Mortgage Policies continue to insure the
Mortgages as amended by the Third Mortgage Amendments; and
(iii) revised Schedules 4.01(a), 4.01(b), 4.01(d),
4.01(m), 4.01(v), 4.01(w), 4.01(x), 4.01(bb), 4.01(ff),
4.01(ii), 4.01(kk), 4.01(ll) and 4.01(nn) supplementing such
Schedules delivered on the First Closing Date in order to
properly reflect the information contained in such Schedules
as of the Fourth Closing Date.
(u) Further Assurances. (i) Promptly upon request by the
Administrative Agent, or any Lender Party through the Administrative
Agent, correct, and cause each of its Subsidiaries promptly to correct,
any material defect or error that may be discovered in any Loan
Document or in the execution, acknowledgment, filing or recordation
thereof, and
(ii) Promptly upon request by the Collateral Agent, or any
Lender Party through the Collateral Agent, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register,
and cause each of its Subsidiaries promptly to do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and
re-register, any and all such further acts, deeds, conveyances, pledge
agreements, mortgages, deeds of trust, trust deeds, assignments,
financing statements and continuations thereof, termination statements,
notices of assignment, transfers, certificates, assurances and other
instruments as the Collateral Agent, or any Lender Party through the
Collateral Agent, may reasonably require from time to time in order to
(A) carry out more effectively the purposes of this Agreement, the
Notes or any other Loan Document, (B) to the fullest extent permitted
by applicable law, subject any of the Borrower's or any of its
Subsidiaries' properties, assets, rights or interests to the Liens now
or hereafter intended to be covered by any of the Collateral Documents,
(C) perfect and maintain the validity, effectiveness and priority of
any of the Collateral Documents and any of the Liens intended to be
created thereunder and (D) assure, convey, grant, assign, transfer,
preserve, protect and confirm more effectively unto the Agents and the
Lender Parties the rights granted or now or hereafter intended to be
granted to the Agents and the Lender Parties under any Loan Document or
under any other instrument executed in connection with any Loan
Document to which any Loan Party or any of its Subsidiaries is or is to
be a party; provided, however, that in any event this Section 5.01(u)
shall not require Liens on,
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and the execution and delivery of Collateral Documents covering, any
property to the extent not otherwise required by the terms of the Loan
Documents.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit
any of its Subsidiaries to sign or file or suffer to exist, under the
Uniform Commercial Code of any jurisdiction, a financing statement that
names the Borrower or any of its Subsidiaries as debtor, or sign or
suffer to exist, or permit any of its Subsidiaries to sign or suffer to
exist, any security agreement authorizing any secured party thereunder
to file such financing statement, or assign, or permit any of its
Subsidiaries to assign, any accounts or other right to receive income,
excluding, however, from the operation of the foregoing restrictions
the following:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the First Closing Date and
described on Schedule 5.02(a) hereto;
(iv) purchase money Liens upon or in real property or
equipment acquired or held by the Borrower or any of its
Subsidiaries in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property or equipment
to be subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition (other than
any such Liens created in contemplation of such acquisition
that do not secure the purchase price), or extensions,
renewals or replacements of any of the foregoing for the same
or a lesser amount; provided, however, that no such Lien shall
extend to or cover any property other than the property or
equipment being acquired, constructed or improved, and no such
extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended,
renewed or replaced; and provided further that the aggregate
principal amount of the Debt secured by Liens permitted by
this clause (iv) shall not exceed the amount permitted under
Section 5.02(b)(iii)(B) at any time outstanding and that any
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such Debt shall not otherwise be prohibited by the terms of
the Loan Documents;
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(b)(iii)(C); provided that
no such Lien shall extend to or cover any Collateral or assets
other than the assets subject to such Capitalized Leases;
(vi) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the
Borrower or any Subsidiary of the Borrower or becomes a
Subsidiary of the Borrower; provided that such Liens were not
created in contemplation of such merger, consolidation or
investment and do not extend to any assets other than those of
the Person merged into or consolidated with the Borrower or
such Subsidiary or acquired by the Borrower or such
Subsidiary;
(vii) Liens securing Obligations of the Borrower or
any of its Subsidiaries in an aggregate amount not to exceed
$5,000,000 at any time outstanding;
(viii) Liens arising in connection with any lease
permitted under Section 5.02(c), provided that no such Lien
shall extend to or cover any assets other than the assets
subject to such lease;
(ix) Liens on the capital stock of the Play Center
Joint Venture securing Obligations of the Play Center Joint
Venture; and
(x) the replacement, extension or renewal of any Lien
permitted by clauses (iii) and (vi) above upon or in the same
property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby.
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist,
any Debt other than:
(i) in the case of the Borrower,
(A) Debt owed to its Subsidiaries; so long
as at the time of incurrence of such Debt,
foreclosure proceedings shall not have been commenced
with respect to any stock or assets of such
Subsidiaries,
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(B) Debt in respect of Hedge Agreements not
entered into for speculative purposes and designed to
hedge against fluctuations in interest rates or
foreign exchange rates incurred in the ordinary
course of business and consistent with prudent
business practice, and
(C) Debt in respect of guarantees by the
Borrower of the Obligations of Foreign Subsidiaries
under bank overdraft facilities permitted under
Section 5.02(b)(iii)(I),
(ii) in the case of any of its Subsidiaries, Debt
owed to the Borrower or to a wholly owned Subsidiary of the
Borrower to the extent permitted under Section 5.02(f); and
(iii) in the case of the Borrower and any of its
Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by
Section 5.02(a)(iv) not to exceed in the aggregate
$10,000,000 at any time outstanding,
(C) Capitalized Leases in an aggregate
amount, calculated in accordance with GAAP, not to
exceed in the aggregate $10,000,000 at any time
outstanding,
(D) the Surviving Debt, and any Debt
extending the maturity of, or refunding or
refinancing, in whole or in part, any Surviving Debt,
provided that the terms of any such extending,
refunding or refinancing Debt, and of any agreement
entered into and of any instrument issued in
connection therewith, are otherwise permitted by the
Loan Documents and provided further that the
principal amount of such Surviving Debt shall not be
increased above the principal amount thereof
outstanding immediately prior to such extension,
refunding or refinancing, and the direct and
contingent obligors therefor shall not be changed, as
a result of or in connection with such extension,
refunding or refinancing,
(E) Subordinated Debt under the Subordinated
Notes Indentures,
(F) Debt of any Person that becomes a
Subsidiary of the Borrower after the First Closing
Date in accordance with the terms of
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Section 5.02(f) that is existing at the time such Person
becomes a Subsidiary of the Borrower,
(G) Debt in an aggregate principal amount
not to exceed $5,000,000 outstanding at any time and
consisting of letters of credit (other than Letters
of Credit issued hereunder) and reimbursement
obligations in respect thereof,
(H) other Debt in an aggregate amount not to
exceed $5,000,000 at any time outstanding,
(I) in the case of Foreign Subsidiaries,
Debt under bank overdraft facilities in an aggregate
amount not to exceed $10,000,000 at any time
outstanding,
(J) indorsement of negotiable instruments
for deposit or collection or similar transactions in
the ordinary course of business, and
(K) Debt consisting of repurchase
arrangements in connection with the financing of
bowling equipment sales by the Borrower and its
Subsidiaries.
(c) Lease Obligations. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any obligations as lessee for the rental or hire of
real or personal property of any kind under leases or agreements to
lease (including Capitalized Leases) having an original term of one
year or more that would cause the direct and contingent liabilities of
the Borrower and its Subsidiaries, on a Consolidated basis, in respect
of all such obligations to exceed an amount payable in any period of 12
consecutive months equal to the sum of (i) $25,000,000, (ii) an amount
equal to the product of (x) $200,000 and (y) the number of leased
bowling centers acquired by the Borrower or any of its Subsidiaries
after the First Closing Date and (iii) in each calendar year occurring
after 1996, an amount equal to 4% of the amount permitted under this
Section 5.02(c) in the immediately preceding calendar year, calculated
as at the end of such preceding calendar year.
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries
to do so, except that (i) any Subsidiary of the Borrower may merge into
or consolidate with the
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Borrower (in the case of any merger or consolidation to which the
Borrower is a party), or any other Subsidiary of the Borrower; provided
that, in the case of any such merger or consolidation, the Person
surviving such merger or consolidation shall be the Borrower (in the
case of any merger or consolidation to which the Borrower is a party),
or a wholly owned Subsidiary of the Borrower, (ii) in connection with
any acquisition permitted under Section 5.02(f), any Subsidiary of the
Borrower may merge into or consolidate with any other Person or permit
any other Person to merge into or consolidate with it; provided that
the Person surviving such merger shall be a wholly owned Subsidiary of
the Borrower and (iii) in connection with any sale or other disposition
permitted under Section 5.02(e) (other than clause (ii) thereof), any
Subsidiary of the Borrower may merge into or consolidate with any other
Person or permit any other Person to merge into or consolidate with it;
provided, however, that in each case, immediately after giving effect
thereto, no event shall occur and be continuing that constitutes a
Default.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right
to purchase, lease or otherwise acquire any assets other than inventory
to be sold in the ordinary course of its business, except:
(i) sales of Inventory in the ordinary course of its
business,
(ii) in a transaction authorized by subsection (d)(i)
or (ii) of this Section 5.02,
(iii) the sale or other disposition of damaged, worn
out or obsolete property that is no longer necessary for the
proper conduct of the business of the Borrower and its
Subsidiaries in the ordinary course of business, provided that
the fair value of the assets so sold or otherwise disposed of
shall not exceed $1,000,000 in the aggregate in any Fiscal
Year,
(iv) the sale or other disposition of assets by any
Loan Party to any other Loan Party,
(v) the sale of assets or properties for fair value
in an aggregate amount for any one such transaction or series
of related transactions not to exceed $10,000,
(vi) sales or exchanges of assets by the Borrower or
any of its Subsidiaries for fair value and for cash or senior
promissory notes or equity of the seller thereof or like-kind
assets (including, without limitation, the stock of the Person
owning such assets) to be used in the business of the Borrower
and its Subsidiaries or any other assets, provided that the
fair value of the assets so sold or exchanged shall not exceed
$25,000,000 in the aggregate in any Fiscal Year, provided
further that any notes or equity or other non-cash assets
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received in connection with any sale or exchange of assets
pursuant to this clause (vi) shall be pledged as Collateral
securing the Obligations of the Borrower or such Subsidiary,
as the case may be, under the Loan Documents and the Secured
Parties' lien and security interest therein shall be perfected
(and the Borrower shall, and shall cause any such Subsidiary
to, take such action as the Collateral Agent may deem
necessary or desirable to effect such perfection) in
accordance with the terms of the Loan Documents,
(vii) sale of the Borrower's billiards equipment
manufacturing business for fair value, and
(viii) the lease by the Borrower and its
Subsidiaries, as lessors, in the ordinary course of their
respective business and on an arm's-length basis, of real
property consisting of space located in their respective
bowling centers, and other leasing arrangements entered into
by the Borrower and its Subsidiaries in the ordinary course of
business and without significant economic cost to the Borrower
and its Subsidiaries in order to permit the service of
alcoholic beverages and gaming operations pursuant to
applicable law,
provided that in the case of sales or exchanges of assets pursuant to
clauses (vi) and (vii) above, the Borrower shall, on the date of
receipt by any Loan Party or any of its Subsidiaries of any Net Cash
Proceeds from such sale, prepay the Advances pursuant to, and in the
amount and order of priority set forth in, Section 2.06(b)(ii), as
specified therein.
(f) Investments in Other Persons. Make or hold, or permit any
of its Subsidiaries to make or hold, any Investment in any Person other
than:
(i) (A) Investments by the Borrower and its
Subsidiaries in their Subsidiaries outstanding on the First
Closing Date, (B) additional Investments in their wholly owned
Subsidiaries that are Loan Parties and (C) additional
Investments in their wholly owned Subsidiaries that are not
Loan Parties and the China Joint Venture, in the case of this
clause (C), in an aggregate amount invested not to exceed an
amount in any Fiscal Year equal to the sum of (x) $10,000,000,
(y) the aggregate amount of capital contributions made after
the Fourth Closing Date by the Equity Investors and new third
party equity investors in Parent in any Fiscal Year to the
extent such amount was contributed to such Subsidiary as a
capital contribution in such Fiscal Year (without duplication
of amounts contributed pursuant to clause (ii) below) and (z)
any amount available for Investments pursuant to Section
5.02(f)(ii)(x) but not so invested, provided that, to the
extent that any amount permitted to be
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invested in any Fiscal Year pursuant to this clause (C) shall
not have been so invested, such amount may be invested
pursuant to this subsection (i) in the next succeeding Fiscal
Year and any amounts invested in the next succeeding Fiscal
Year shall be deemed to be applied first against the amount so
carried over from the preceding Fiscal Year;
(ii) Investments by the Borrower and its Subsidiaries
in their non-wholly owned Subsidiaries and in other Persons
that are not their Subsidiaries in an aggregate amount
invested from the Fourth Closing Date not to exceed the sum of
(x) $65,000,000 and (y) the aggregate amount of capital
contributions made after the Fourth Closing Date by the Equity
Investors and new third party equity investors in Parent in
any Fiscal Year to the extent such amount was contributed to
such Subsidiary as a capital contribution in such Fiscal Year
(without duplication of amounts contributed or invested
pursuant to clause (i) above);
(iii) Loans and advances to employees in the ordinary
course of business of the Borrower and its Subsidiaries as
presently conducted in an aggregate principal amount not to
exceed $7,500,000 for the purpose of purchasing common stock
of Parent and an additional $2,000,000 at any time
outstanding;
(iv) Investments by the Borrower and its Subsidiaries
in Cash Equivalents;
(v) Investments by the Borrower in Hedge Agreements
permitted under Section 5.02(b)(i)(B);
(vi) Investments consisting of intercompany Debt
permitted under Section 5.02(b)(i)(A);
(vii) Investments existing on the Fourth Closing Date
and described on Schedule 4.01(mm) hereto;
(viii) Investments consisting of notes and equity
received pursuant to Section 5.02(e)(vi) or (vii); and
(ix) other Investments made in connection with the
acquisition of all or any part of the assets or stock or other
equity interest of any Person or the acquisition or
construction of New Centers; provided that with respect to
Investments made under this clause (ix): (1) any newly
acquired or created Subsidiary of the Borrower or any of its
Subsidiaries shall be a wholly owned
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Subsidiary thereof and such Subsidiary (unless such Subsidiary
is a Foreign Subsidiary) shall become a Subsidiary Guarantor
and execute and deliver the documents referred to in Section
5.01(n); (2) immediately before and after giving effect
thereto, no Default shall have occurred and be continuing or
would result therefrom; (3) substantially all of any business
acquired or invested in pursuant to this clause (ix) shall be
in the same or a substantially related line of business as the
business of the Borrower or any of its Subsidiaries (after
giving effect to permitted expansion by the Borrower and its
Subsidiaries into golf-related business pursuant to Section
5.02(h)); and (4) immediately after giving effect to the
acquisition of a company or business pursuant to this clause
(ix), the Borrower shall be in pro forma compliance with the
covenants contained in Section 5.04, calculated based on the
relevant Financial Statements, as though such acquisition had
occurred at the beginning of the 12-month period covered
thereby, as evidenced by a certificate of a Designated
Financial Officer furnished to the Lender Parties,
demonstrating such compliance and reflecting the Adjusted
EBITDA of any bowling center so acquired for the immediately
preceding 12-month period.
(g) Dividends, Etc. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its
capital stock or any warrants, rights or options to acquire such
capital stock, now or hereafter outstanding, return any capital to its
stockholders as such, make any distribution of assets, capital stock,
warrants, rights, options, obligations or securities to its
stockholders as such or issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock, or permit
any of its Subsidiaries to do any of the foregoing or permit any of its
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire
for value any capital stock of the Borrower or any warrants, rights or
options to acquire such capital stock or to issue or sell any capital
stock or any warrants, rights or options to acquire such capital stock,
except that:
(i) so long as no Default shall have occurred and be
continuing or would result therefrom, the Borrower may (A)
declare and pay dividends and distributions payable only in
common stock of the Borrower and (B) declare and pay cash
dividends to Holdings solely to the extent necessary to (x)
make payments required under the non-competition agreements
listed on Schedule 5.02(g) hereto and (y) declare and pay cash
dividends to Parent to the extent permitted under, and in
accordance with the terms of, the Holdings Guaranty, and
(ii) so long as foreclosure proceedings shall not
have been commenced with respect to any stock or assets of any
Subsidiary of the Borrower, any such Subsidiary may (A)
declare and pay cash dividends to the
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Borrower and (B) declare and pay cash dividends to any other
wholly owned Subsidiary of the Borrower of which it is a
Subsidiary.
(h) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
as carried on at the First Closing Date, except that the Borrower and
its Subsidiaries may own and operate golf driving ranges and engage in
other golf-related businesses to the extent that the aggregate amount
invested by the Borrower and its Subsidiaries in golf driving ranges
and other golf-related businesses does not exceed $50,000,000 at any
time outstanding.
(i) Charter Amendments. Amend, or permit any of its
Subsidiaries to amend, its certificate of incorporation or bylaws in
any material respect.
(j) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies
or reporting practices, except as required by generally accepted
accounting principles or (ii) its Fiscal Year.
(k) Prepayments, Etc. of Debt. (i) Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Debt, other than (A) the prepayment of the Advances in
accordance with the terms of this Agreement, (B) regularly scheduled or
required repayments or redemptions of Surviving Debt, (C) in connection
with any acquisition of a company or business pursuant to Section
5.02(f)(ix), the prepayment, redemption, purchase, defeasance or other
satisfaction of existing Debt of such company or business to the extent
required by the terms of such Debt and (D) the prepayment of any
portion of the Subordinated Notes (including, without limitation, any
premium thereon and expenses incurred in connection therewith) with a
portion of the Net Cash Proceeds received by the Borrower from the IPO
to the extent such Net Cash Proceeds are not required to be used to
prepay Working Capital Advances in accordance with Section
2.06(b)(ii)(B) or (ii) amend, modify or change any term or condition of
any Surviving Debt or Subordinated Debt in any manner that would impair
in any material respect the value of the interests or rights of the
Borrower or any of its Subsidiaries thereunder or that would impair in
any material respect the rights or interests of any Agent or any Lender
Party, or permit any of its Subsidiaries to do any of the foregoing
other than to prepay any Debt payable to the Borrower or any other Loan
Party.
(l) Amendment, Etc. of Related Documents. Cancel or terminate
any Related Document or consent to or accept any cancellation or
termination thereof, amend, modify or change in any manner any term or
condition of any Related Document or give any consent, waiver or
approval thereunder, waive any default
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under or any breach of any term or condition of any Related Document,
agree in any manner to any other amendment, modification or change of
any term or condition of any Related Document or take any other action
in connection with any Related Document, in each case that would impair
in any material respect the value of the interests or rights of the
Borrower thereunder or that would impair in any material respect the
rights or interests of any Agent or any Lender Party, or permit any of
its Subsidiaries to do any of the foregoing.
(m) Ownership Change. Take, or permit any of its Subsidiaries
to take, any action that would result in an "ownership change" (as
defined in Section 382 of the Internal Revenue Code) with respect to
the Borrower or any of its Subsidiaries or the application of the
"separate return limitation year" or "consolidated return change of
ownership" limitations under the Federal income tax consolidated return
regulations with respect to the Borrower or any of its Subsidiaries
(other than as a direct result of the Acquisition and the acquisition
by AMF Bowling Centers of the companies set forth on Schedule 4.01(ff)
hereto) that could be reasonably likely to have a Material Adverse
Effect.
(n) Negative Pledge. Enter into or suffer to exist, or permit
any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets other than (i) in favor of the Secured
Parties, (ii) in connection with any Surviving Debt and any Debt
outstanding on the date such Subsidiary first becomes a Subsidiary (so
long as such agreement was not entered into solely in contemplation of
such Subsidiary becoming a Subsidiary) or (iii) in connection with any
lease permitted under Section 5.02(c) solely to the extent that such
lease prohibits a Lien on the lease or the property subject to such
lease.
(o) Partnerships, Etc. Become a general partner in any general
or limited partnership or joint venture, or permit any of its
Subsidiaries to do so, other than any such Subsidiary the sole assets
of which consist of its interest in such partnership or joint venture.
(p) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions except for
Hedge Agreements permitted under Section 5.02(b)(i)(B).
(q) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the Borrower and its
Subsidiaries to exceed $60,000,000 during the Fiscal Year ending
December 31, 1997, $80,000,000 during the Fiscal
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Year ending December 31, 1998 and $100,000,000 during each Fiscal Year
thereafter, provided, that to the extent that any Capital Expenditures
permitted to be made in any Fiscal Year shall not have been so made,
such Capital Expenditures may be made in the immediately succeeding
Fiscal Year; and provided further, that for purposes of calculating the
aggregate amount of Capital Expenditures permitted in any Fiscal Year,
any amounts so carried over from the immediately preceding Fiscal Year
shall be deemed to be spent after amounts otherwise permitted to be
spent in such Fiscal Year.
(r) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, create or otherwise cause or suffer to exist or become
effective, or permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become
effective, any encumbrance or restriction on the ability of any of its
Subsidiaries to pay dividends or make any other distributions to the
Borrower or any of its Subsidiaries on its capital stock or with
respect to any other interest or participation, or measured by its
profits, or pay any Debt owed to the Borrower or any of its
Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of the Loan Documents, Surviving Debt as in effect
on the First Closing Date and applicable law.
SECTION 5.03. Reporting Requirements. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will furnish to the
Administrative Agent and the Lender Parties:
(a) Default Notice. As soon as possible and in any event
within two days after any officer of the Borrower or Holdings obtains
knowledge of any Default or any event, development or occurrence
reasonably likely to have a Material Adverse Effect continuing on the
date of such statement, a statement of a Designated Financial Officer
setting forth details of such Default, event, development or occurrence
and the action that the Borrower has taken and proposes to take with
respect thereto.
(b) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each Fiscal Year, Consolidated and consolidating balance sheets of
the Borrower and its Subsidiaries as of the end of such quarter and
Consolidated and consolidating statements of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous fiscal quarter and ending
with the end of such fiscal quarter and Consolidated and consolidating
statements of income and a Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of
the previous Fiscal Year and ending with the end of such quarter,
setting forth in each case in comparative form the corresponding
figures
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for the corresponding date or period of the preceding Fiscal Year, all
in reasonable detail and duly certified (subject to normal year-end
audit adjustments) by a Designated Financial Officer as having been
prepared in accordance with GAAP, together with (i) a certificate of
said officer (A) stating that no Default has occurred and is continuing
or, if a Default has occurred and is continuing, a statement as to the
nature thereof and the action that the Borrower has taken and proposes
to take with respect thereto and (B) setting forth, for the Rolling
Period ending at the end of such fiscal quarter, the Adjusted EBITDA
(and the calculation thereof) of each New Center constructed within the
preceding 15 months, EBITDA of each bowling center acquired or
constructed by the Borrower or any of its Subsidiaries after the First
Closing Date and acquired or constructed at least 15 months prior to
the end of such Rolling Period and all Other Additions, if any, for
such Rolling Period and (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by the Borrower in
determining compliance with the covenants contained in Section 5.04,
provided that in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with Section
5.04, a statement of reconciliation conforming such financial
statements to GAAP.
(c) Annual Financials. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
including therein Consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such Fiscal Year and
Consolidated and consolidating statements of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for such
Fiscal Year, in each case accompanied by an opinion not qualified as to
scope or going concern of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, L.L.P. or other independent
public accountants of nationally recognized standing acceptable to the
Administrative Agent, together with (i) a certificate of such
accounting firm to the Lender Parties stating that in the course of the
regular audit of the business of the Borrower and its Subsidiaries,
which audit was conducted by such accounting firm in accordance with
generally accepted auditing standards, such accounting firm has
obtained no knowledge that a Default has occurred and is continuing, or
if, in the opinion of such accounting firm, a Default has occurred and
is continuing, a statement as to the nature thereof, (ii) a schedule in
form satisfactory to the Administrative Agent of the computations used
by such accountants in determining, as of the end of such Fiscal Year,
compliance with the covenants contained in Section 5.04, provided that
in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for
the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP and (iii) a
certificate of a Designated Financial Officer (A) stating that no
Default has occurred and is continuing or, if a default has occurred
and is continuing, a statement as to the
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nature thereof and the action that the Borrower has taken and proposes
to take with respect thereto and (B) setting forth, for the Rolling
Period ending at the end of such Fiscal Year, the Adjusted EBITDA (and
the calculation thereof) of each New Center constructed within the
preceding 15 months, EBITDA of each bowling center acquired or
constructed by the Borrower or any of its Subsidiaries after the First
Closing Date and acquired or constructed at least 15 months prior to
the end of such Rolling Period and all Other Additions, if any, for
such Rolling Period.
(d) Annual Forecasts. As soon as available and in any event no
later than 15 days after the end of each Fiscal Year, forecasts
prepared by management of the Borrower, in form satisfactory to the
Administrative Agent, of balance sheets, income statements and cash
flow statements on a monthly basis for the Fiscal Year following such
Fiscal Year and on an annual basis for each Fiscal Year thereafter
until the Termination Date for the AXELs Series B Facility.
(e) ERISA Events and ERISA Reports. (i) Promptly and in any
event within 20 days after any Loan Party or any ERISA Affiliate knows
or has reason to know that any ERISA Event has occurred, a statement of
a Designated Financial Officer describing such ERISA Event and the
action, if any, that such Loan Party or such ERISA Affiliate has taken
and proposes to take with respect thereto and (ii) on the date any
records, documents or other information must be furnished to the PBGC
with respect to any Plan pursuant to Section 4010 of ERISA, a copy of
such records, documents and information.
(f) Plan Terminations. Promptly and in any event within 10
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any
Plan.
(g) Actuarial Reports. Within 20 Business Days after receipt
thereof by any Loan Party or any ERISA Affiliate, a copy of the annual
actuarial valuation report for each Plan the funded current liability
percentage (as defined in Section 302(d)(8) of ERISA) of which is less
than 90% or the unfunded current liability of which exceeds $2,000,000.
(h) Plan Annual Reports. Within 30 days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan.
(i) Multiemployer Plan Notices. Promptly and in any event
within 10 Business Days after receipt thereof by any Loan Party or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (i) the
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imposition of Withdrawal Liability by any such Multiemployer Plan, (ii)
the reorganization or termination, within the meaning of Title IV of
ERISA, of any such Multiemployer Plan or (iii) the amount of liability
incurred, or that may be incurred, by such Loan Party or any ERISA
Affiliate in connection with any event described in clause (i) or (ii).
(j) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
affecting any Loan Party or any of its Subsidiaries of the type
required to be disclosed in Section 4.01(j).
(k) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that Parent or any Loan Party or any of its Subsidiaries sends
to all of its stockholders, and copies of all regular, periodic and
special reports, and all registration statements, that Parent or any
Loan Party or any of its Subsidiaries files with the Securities and
Exchange Commission or any governmental authority that may be
substituted therefor, or with any national securities exchange.
(l) Creditor Reports. Promptly after the furnishing thereof,
copies of any statement or report furnished to any other holder of the
securities of any Loan Party or of any of its Subsidiaries pursuant to
the terms of any indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Lender Parties pursuant to
any other clause of this Section 5.03.
(m) Agreement Notices. Promptly upon receipt thereof, copies
of all notices of any default or breach and all other material requests
and other documents received by any Loan Party or any of its
Subsidiaries under or pursuant to any Related Document or indenture,
loan or credit or similar agreement and, from time to time upon request
by the Administrative Agent, such information and reports regarding the
Related Documents as the Administrative Agent may reasonably request.
(n) Revenue Agent Reports. Within 10 days after receipt,
copies of all Revenue Agent Reports (Internal Revenue Service Form
886), or other written proposals of the Internal Revenue Service, that
propose, determine or otherwise set forth positive adjustments to the
Federal income tax liability of the affiliated group (within the
meaning of Section 1504(a)(1) of the Internal Revenue Code) of which
the Borrower is a member aggregating $2,000,000 or more.
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(o) Tax Certificates. Promptly, and in any event within five
Business Days after the due date (with extensions) for filing the final
Federal income tax return in respect of each taxable year, a
certificate (a "Tax Certificate"), signed by the President of the
Borrower or a Designated Financial Officer, stating that the common
parent of the affiliated group (within the meaning of Section
1504(a)(1) of the Internal Revenue Code) of which the Borrower is a
member has paid to the Internal Revenue Service or other taxing
authority, or to the Borrower, the full amount that such affiliated
group is required to pay in respect of Federal income tax for such year
and that the Borrower and its Subsidiaries have received any amounts
payable to them, and have not paid amounts in respect of taxes
(Federal, state, local or foreign) in excess of the amount they are
required to pay, under the Tax Agreements in respect of such taxable
year.
(p) Notification of Tax Adjustments. Promptly, and in any
event within five Business Days after receipt of notice thereof, notice
of any adjustment that has been proposed formally or informally by any
tax authority relating to any tax return (Federal, state, local and
foreign) filed by any Loan Party or any of its Subsidiaries and
Affiliates in excess of $1,000,000.
(q) Environmental Conditions. Notice of any Environmental
Action against, or of any noncompliance with any Environmental Law or
Environmental Permit by, any Loan Party or any of its Subsidiaries that
could (i) reasonably be expected to have a Material Adverse Effect or
(ii) reasonably be expected to cause any property described in the
Mortgages to be subject to any restrictions on ownership, occupancy,
use or transferability under any Environmental Law that could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, such notice to be furnished promptly after
such Environmental Action or noncompliance meets the criteria set forth
in either subsection (i) or subsection (ii) of this Section 5.03(q).
(r) Real Property. As soon as available and in any event
within 60 days after the end of each Fiscal Year, a report
supplementing Schedules 4.01(kk) and 4.01(ll) hereto, including an
identification of all real and leased property disposed of by the
Borrower or any of its Subsidiaries during such Fiscal Year, a list and
description (including the street address, county or other relevant
jurisdiction, state, record owner, book value thereof, and in the case
of leases of property, lessor, lessee, expiration date and annual
rental cost thereof) of all real property acquired or leased during
such Fiscal Year and a description of such other changes in the
information included in such Schedules as may be necessary for such
Schedules to be accurate and complete, provided that so long as no
Default shall have occurred and be continuing, updated asset appraisals
shall not be required pursuant to this subsection (r).
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(s) Insurance. As soon as available and in any event within 60
days after the end of each Fiscal Year, a report summarizing the
insurance coverage (specifying type, amount and carrier) in effect for
each Loan Party and its Subsidiaries and containing such additional
information as any Lender Party (through the Administrative Agent) may
reasonably specify.
(t) Guarantees of Overdraft Facilities of Foreign
Subsidiaries. On the first Business Day of each week, during such times
as the aggregate Unused Working Capital Commitments shall be less than
$15,000,000, a report specifying the amount of Debt of the Borrower
outstanding under Section 5.02(b)(i)(C) as of the last Business Day of
the prior week.
(u) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as
any Lender Party (through the Administrative Agent) may from time to
time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will:
(a) Minimum EBITDA. Maintain at all times (calculated at the
end of each fiscal quarter of the Borrower) Modified Consolidated
EBITDA of not less than the sum of (i) the amount set forth below for
each Rolling Period set forth below and (ii) the EBITDA Adjustment
Amount for such Rolling Period:
ROLLING PERIOD ENDING AMOUNT
--------------------- ------
September 30, 1996 $140,000,000
December 31, 1996 $145,000,000
March 31, 1997 $150,000,000
June 30, 1997 $150,000,000
September 30, 1997 $150,000,000
December 31, 1997 $150,000,000
March 31, 1998 $150,000,000
June 30, 1998 $150,000,000
September 30, 1998 $155,000,000
December 31, 1998 $155,000,000
March 31, 1999 $155,000,000
June 30, 1999 $155,000,000
September 30, 1999 $165,000,000
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ROLLING PERIOD ENDING AMOUNT
--------------------- ------
December 31, 1999 $165,000,000
March 31, 2000 $165,000,000
June 30, 2000 $165,000,000
September 30, 2000 $175,000,000
December 31, 2000 $175,000,000
March 31, 2001 $175,000,000
June 30, 2001 $175,000,000
September 30, 2001 $185,000,000
December 31, 2001 $185,000,000
March 31, 2002 $185,000,000
June 30, 2002 $185,000,000
September 30, 2002 $195,000,000
December 31, 2002 $195,000,000
March 31, 2003 $195,000,000
June 30, 2003 $195,000,000
September 30, 2003 and thereafter $200,000,000
(b) Cash Interest Coverage Ratio. Maintain at all times
(calculated at the end of each fiscal quarter of the Borrower) a ratio
of Modified Consolidated EBITDA to cash interest payable on all Debt of
the Borrower and its Subsidiaries on a Consolidated basis, in each case
for such Rolling Period of not less than the amount set forth below for
each Rolling Period set forth below:
ROLLING PERIOD ENDING RATIO
--------------------- -----
September 30, 1996 2.00:1
December 31, 1996 2.00:1
March 31, 1997 2.00:1
June 30, 1997 2.00:1
September 30, 1997 2.25:1
December 31, 1997 2.25:1
March 31, 1998 2.25:1
June 30, 1998 2.25:1
September 30, 1998 2.25:1
December 31, 1998 2.25:1
March 31, 1999 2.35:1
June 30, 1999 2.35:1
September 30, 1999 2.35:1
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ROLLING PERIOD ENDING RATIO
--------------------- -----
December 31, 1999 2.35:1
March 31, 2000 2.75:1
June 30, 2000 2.75:1
September 30, 2000 2.75:1
December 31, 2000 2.75:1
March 31, 2001 2.75:1
June 30, 2001 2.75:1
September 30, 2001 2.50:1
December 31, 2001 2.50:1
March 31, 2002 2.50:1
June 30, 2002 2.50:1
September 30, 2002 and thereafter 2.75:1
(c) Fixed Charge Coverage Ratio. Maintain at all times
(calculated at the end of each fiscal quarter of the Borrower) a ratio
of (A) Modified Consolidated EBITDA during such Rolling Period less the
sum of (I) cash taxes paid plus (II) Capital Expenditures made, in each
case, by the Borrower and its Subsidiaries during such Rolling Period
to (B) the sum of (i) cash interest payable on all Debt plus (ii)
principal amounts of all Debt under the Term Facilities payable by the
Borrower during such Rolling Period of not less than the amount set
forth below for each Rolling Period set forth below:
ROLLING PERIOD ENDING RATIO
--------------------- -----
September 30, 1996 1.05:1
December 31, 1996 1.05:1
March 31, 1997 1.05:1
June 30, 1997 1.05:1
September 30, 1997 1.10:1
December 31, 1997 1.10:1
March 31, 1998 1.10:1
June 30, 1998 1.10:1
September 30, 1998 1.10:1
December 31, 1998 1.10:1
March 31, 1999 1.15:1
June 30, 1999 1.15:1
September 30, 1999 1.15:1
December 31, 1999 1.15:1
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ROLLING PERIOD ENDING RATIO
--------------------- -----
March 31, 2000 1.20:1
June 30, 2000 1.20:1
September 30, 2000 1.20:1
December 31, 2000 1.20:1
March 31, 2001 1.20:1
June 30, 2001 1.20:1
September 30, 2001 1.10:1
December 31, 2001 1.10:1
March 31, 2002 and thereafter 1.00:1
(d) Senior Debt to EBITDA Ratio. Maintain at all times
(calculated at the end of each fiscal quarter of the Borrower) a ratio
of Consolidated Debt (other than Subordinated Debt and Hedge
Agreements) of the Borrower and its Subsidiaries to Modified
Consolidated EBITDA of not more than the amount set forth below for
each Rolling Period set forth below:
ROLLING PERIOD ENDING RATIO
--------------------- -----
September 30, 1996 3.50:1
December 31, 1996 3.50:1
March 31, 1997 3.50:1
June 30, 1997 3.75:1
September 30, 1997 3.75:1
December 31, 1997 3.60:1
March 31, 1998 3.60:1
June 30, 1998 3.60:1
September 30, 1998 3.60:1
December 31, 1998 3.60:1
March 31, 1999 3.60:1
June 30, 1999 3.60:1
September 30, 1999 3.60:1
December 31, 1999 3.60:1
March 31, 2000 3.25:1
June 30, 2000 3.25:1
September 30, 2000 3.25:1
December 31, 2000 3.25:1
March 31, 2001 3.00:1
June 30, 2001 3.00:1
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ROLLING PERIOD ENDING RATIO
--------------------- -----
September 30, 2001 3.00:1
December 31, 2001 3.00:1
March 31, 2002 and thereafter 2.50:1
(e) Total Debt/EBITDA Ratio. Maintain at all times (calculated
at the end of each fiscal quarter of the Borrower) a ratio of
Consolidated total Debt (other than Hedge Agreements) of the Borrower
and its Subsidiaries to Modified Consolidated EBITDA of not more than
the amount set forth below for each Rolling Period set forth below:
ROLLING PERIOD ENDING RATIO
--------------------- -----
September 30, 1996 6.95:1
December 31, 1996 6.95:1
March 31, 1997 6.75:1
June 30, 1997 6.50:1
September 30, 1997 6.50:1
December 31, 1997 6.00:1
March 31, 1998 6.00:1
June 30, 1998 6.00:1
September 30, 1998 6.00:1
December 31, 1998 6.00:1
March 31, 1999 6.00:1
June 30, 1999 6.00:1
September 30, 1999 6.00:1
December 31, 1999 6.00:1
March 31, 2000 5.50:1
June 30, 2000 5.50:1
September 30, 2000 5.50:1
December 31, 2000 5.50:1
March 31, 2001 5.00:1
June 30, 2001 5.00:1
September 30, 2001 5.00:1
December 31, 2001 5.00:1
March 31, 2002 and thereafter 4.50:1
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower
shall fail to pay any interest on any Advance, or any Loan Party shall
fail to make any other payment under any Loan Document, in each case
under this clause (ii) within three days after the same becomes due and
payable; or
(b) any representation or warranty made by any Loan Party (or
any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in ▇▇▇▇▇▇▇ ▇.▇▇, ▇.▇▇(▇), (▇), (▇),
(▇)(▇) or (n)(ii), (p), (q), (r), (s) (t) or (u), 5.02, 5.03(a) or
5.04; or
(d) any Loan Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 15
days after the earlier of the date on which (A) a Responsible Officer
becomes aware of such failure or (B) written notice thereof shall have
been given to the Borrower by the Administrative Agent or any Lender
Party; or
(e) any Loan Party or any of its Material Subsidiaries shall
fail to pay any principal of, premium or interest on or any other
amount payable in respect of any Debt that is outstanding in a
principal amount of at least $25,000,000 either individually or in the
aggregate (but excluding Debt outstanding hereunder) of such Loan Party
or such Material Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such Debt shall be
declared to be due and payable or required to be prepaid or redeemed
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(other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Material Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against any Loan Party or any of its Material
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 30 days or any of
the actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any
of its Material Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in excess
of $25,000,000 shall be rendered against any Loan Party or any of its
Material Subsidiaries and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or (ii)
there shall be any period of 15 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that any such
judgment or order shall not be an Event of Default under this Section
6.01(g) if and to the extent that the amount of such judgment or order
is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof so long as such
insurer, which shall be rated at least "A" by A.M. Best Company, has
been notified of, and has not disputed the claim made for payment of,
the amount of such judgment or order; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Material Subsidiaries that could
be reasonably likely to have a Material Adverse Effect, and there shall
be any period of 15 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
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(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01, 3.04, 3.05 or 5.01(n) shall for any reason
cease to be valid and binding on or enforceable against any Loan Party
party to it, or any such Loan Party shall so state in writing; or
(j) any provision relating to the subordination of any
Subordinated Debt to the Obligations of the Loan Parties under the Loan
Documents contained in any Subordinated Debt Document shall for any
reason cease to be valid and binding on or enforceable against any Loan
Party party to it or any holder of Subordinated Debt issued pursuant to
such Subordinated Debt Document, or any such Loan Party or holder shall
so state in writing; or
(k) any Collateral Document (excluding Mortgages covering
Collateral which, in the aggregate, is immaterial) after delivery
thereof pursuant to Section 3.01, 3.04, 3.05 or 5.01(n) shall for any
reason (other than pursuant to the terms thereof or as a result of
action taken or failure to take action by any Agent or Lender Party)
cease to create a valid and perfected first priority lien on and
security interest in the Collateral purported to be covered thereby; or
(l) Parent ceases to own and control legally and beneficially
all of the outstanding shares of the capital stock of Holdings; or
(m) Holdings ceases to own and control legally and
beneficially all of the outstanding shares of the capital stock of the
Borrower; or
(n) a Change of Control shall occur; or
(o) any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the
ERISA Affiliates related to such ERISA Event) exceeds $25,000,000; or
(p) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
$25,000,000 or requires payments exceeding $7,500,000 per annum; or
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(q) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and
the ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years
of such Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount exceeding
$7,500,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of the Lender Parties and the obligation of each
Appropriate Lender to make Advances (other than Letter of Credit Advances by an
Issuing Bank or a Working Capital Lender pursuant to Section 2.03(c)) and of
each Issuing Bank to issue Letters of Credit to be terminated, whereupon the
same shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
any Loan Party or any of its Subsidiaries under the Federal Bankruptcy Code, (x)
the obligation of each Lender to make Advances (other than Letter of Credit
Advances by an Issuing Bank or a Working Capital Lender pursuant to Section
2.03(c)) and of each Issuing Bank to issue Letters of Credit shall automatically
be terminated and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office designated
in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding. If
at any time the Administrative Agent determines that any funds held in the L/C
Cash Collateral Account are subject to any right or claim of any Person other
than the Administrative Agent and the Lender Parties or that the total amount of
such funds is less than the aggregate Available Amount of all Letters of Credit,
the Borrower will, forthwith upon demand by the Administrative Agent, pay to the
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Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Collateral Account that the Administrative Agent determines to be free
and clear of any such right and claim.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender Party (in
its capacities as a Lender, an Issuing Bank (if applicable) and a potential
Hedge Bank) hereby appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement and the other Loan Documents as are delegated to such Agent by the
terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters expressly provided for in the
Loan Documents as being subject to the discretion of any Agent, such matters
shall be subject to the sole discretion of such Agent, its directors, officers,
agents and employees. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of the
Notes), no Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lender
Parties and all holders of Notes; provided, however, that no Agent shall be
required to take any action that exposes such Agent to personal liability or
that is contrary to this Agreement or applicable law. Each Agent agrees to give
to each Lender Party and each other Agent prompt notice of each notice given to
it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agents' Reliance, Etc. Neither the Agents nor
any of their respective directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 8.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender Party and
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shall not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank, Citicorp, Goldman and Affiliates. With
respect to its Commitments, the Advances made by it and the Notes issued to it,
each of Citibank, Citicorp and Goldman shall have the same rights and powers
under the Loan Documents as any other Lender Party and may exercise the same as
though it were not an Agent; and the term "Lender Party" or "Lender Parties"
shall, unless otherwise expressly indicated, include each of Citibank, Citicorp
and Goldman in its individual capacity. Each of Citibank, Citicorp and Goldman
and its affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person who may do business with or own securities of any Loan Party or any such
Subsidiary, all as if Citibank, Citicorp or Goldman, as the case may be, were
not an Agent and without any duty to account therefor to the Lender Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon the Agents or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon the Agents or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally
agrees to indemnify each Agent (to the extent not promptly reimbursed by the
Borrower) from and against such Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of the Loan Documents
or any action taken or omitted by such Agent under the Loan Documents; provided,
however,
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that no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender Party
agrees to reimburse such Agent promptly upon demand for its ratable share of any
costs and expenses (including, without limitation, reasonable fees and expenses
of counsel) payable by the Borrower under Section 8.04, to the extent that such
Agent is not promptly reimbursed for such costs and expenses by the Borrower.
For purposes of this Section 7.05(a), the Lender Parties' respective ratable
shares of any amount shall be determined, at any time, according to the sum of
(a) the aggregate principal amount of the Advances outstanding at such time and
owing to the respective Lender Parties, (b) their respective Pro Rata Shares of
the aggregate Available Amount of all Letters of Credit outstanding at such
time, (c) the aggregate unused portions of their respective Term Loan
Commitments, AXELs Series A Commitments and AXELs Series B Commitments at such
time and (d) their respective Unused Working Capital Commitments at such time;
provided that the aggregate principal amount of Letter of Credit Advances owing
to any Issuing Bank shall be considered to be owed to the Working Capital
Lenders ratably in accordance with their respective Working Capital Commitments.
In the event that any Defaulted Advance shall be owing by any Defaulting Lender
at any time, such Lender Party's Commitment with respect to the Facility under
which such Defaulted Advance was required to have been made shall be considered
to be unused for purposes of this Section 7.05(a) to the extent of the amount of
such Defaulted Advance. The failure of any Lender Party to reimburse an Agent
promptly upon demand for its ratable share of any amount required to be paid by
the Lender Party to such Agent as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse such Agent for its ratable
share of such amount, but no Lender Party shall be responsible for the failure
of any other Lender Party to reimburse such Agent for such other Lender Party's
ratable share of such amount. Without prejudice to the survival of any other
agreement of any Lender Party hereunder, the agreement and obligations of each
Lender Party contained in this Section 7.05(a) shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under the
other Loan Documents.
(b) Each Working Capital Lender severally agrees to indemnify
each Issuing Bank (to the extent not promptly reimbursed by the Borrower) from
and against such Working Capital Lender's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Issuing Bank in any way relating to or arising out of the Loan Documents or any
action taken or omitted by such Issuing Bank under the Loan Documents; provided,
however, that no Working Capital Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Issuing Bank's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Working Capital Lender agrees to reimburse such
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Issuing Bank promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) payable by the Borrower under Section 8.04, to the extent that such
Issuing Bank is not promptly reimbursed for such costs and expenses by the
Borrower. For purposes of this Section 7.05(b), the Working Capital Lenders'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Working Capital Lenders,
(b) their respective Pro Rata Shares of the aggregate Available Amount of all
Letters of Credit outstanding at such time, and (c) their respective Unused
Working Capital Commitments at such time; provided that the aggregate principal
amount of Letter of Credit Advances owing to any Issuing Bank shall be
considered to be owed to the Working Capital Lenders ratably in accordance with
their respective Working Capital Commitments. In the event that any Defaulted
Advance shall be owing by any Defaulting Lender at any time, such Lender Party's
Commitment with respect to the Facility under which such Defaulted Advance was
required to have been made shall be considered to be unused for purposes of this
Section 7.05(b) to the extent of the amount of such Defaulted Advance. The
failure of any Working Capital Lender to reimburse such Issuing Bank promptly
upon demand for its ratable share of any amount required to be paid by the
Working Capital Lenders to such Issuing Bank as provided herein shall not
relieve any other Working Capital Lender of its obligation hereunder to
reimburse such Issuing Bank for its ratable share of such amount, but no Working
Capital Lender shall be responsible for the failure of any other Working Capital
Lender to reimburse such Issuing Bank for such other Working Capital Lender's
ratable share of such amount. Without prejudice to the survival of any other
agreement of any Working Capital Lender hereunder, the agreement and obligations
of each Working Capital Lender contained in this Section 7.05(b) shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 7.06. Successor Agents. Any Agent may resign as to any
or all of the Facilities at any time by giving written notice thereof to the
Lender Parties and the Borrower and may be removed as to all of the Facilities
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent as to such of the Facilities as to which such Agent has resigned
or been removed subject, so long as no Default shall have occurred and be
continuing, to the consent of the Borrower, such consent not to be unreasonably
withheld or delayed. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
such retiring Agent's giving of notice of resignation or the Required Lenders'
removal of such retiring Agent, then such retiring Agent may, on behalf of the
Lender Parties, appoint a successor Agent subject, so long as no Default shall
have occurred and be continuing, to the consent of the Borrower, such consent
not to be unreasonably withheld or delayed, which shall be a commercial bank
organized or licensed under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $250,000,000. Upon
the acceptance of any
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appointment as an Agent hereunder by a successor Agent as to all of the
Facilities and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such amendments or supplements to the
Mortgages, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Agent shall succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under the
Loan Documents. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent as to less than all of the Facilities and upon the execution and
filing or recording of such financing statements, or amendments thereto, and
such amendments or supplements to the Mortgages, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, such successor Agent shall succeed to
and become vested with all the rights, powers, discretion, privileges and duties
of the retiring Agent as to such Facilities, other than with respect to funds
transfers and other similar aspects of the administration of Borrowings under
such Facilities, issuances of Letters of Credit (notwithstanding any resignation
as Agent with respect to the Letter of Credit Facility) and payments by the
Borrower in respect of such Facilities, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement as to such
Facilities, other than as aforesaid. After any retiring Agent's resignation or
removal hereunder as Agent as to all of the Facilities, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent as to any Facilities under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by the Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lender
Parties (other than any Lender Party that is, at such time, a Defaulting
Lender), do any of the following at any time: (i) waive any of the conditions
specified in Section 3.01 or, in the case of the Initial Extension of Credit,
Section 3.02, (ii) change the number of Lenders or the percentage of (x) the
Commitments, (y) the aggregate unpaid principal amount of the Advances or (z)
the aggregate Available Amount of outstanding Letters of Credit that, in
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each case, shall be required for the Lenders or any of them to take any action
hereunder, (iii) reduce or limit the obligations of any Guarantor under Section
1 of any Guaranty or release such Guarantor or otherwise limit such Guarantor's
liability with respect to the Obligations owing to the Administrative Agent and
the Lender Parties other than, in the case of any Subsidiary Guarantor, to the
extent permitted under the Subsidiary Guaranty, (iv) release any material
portion of the Collateral in any transaction or series of related transactions
(except to the extent permitted by Section 5.02(e)) or permit the creation,
incurrence, assumption or existence of any Lien (other than Liens permitted
under Section 5.02(a)) on any material portion of the Collateral in any
transaction or series of related transactions to secure any Obligations other
than Obligations owing to the Secured Parties under the Loan Documents and other
than Debt owing to any other Person, provided that, in the case of any Lien on
any material portion of the Collateral to secure Debt owing to any other Person
(other than Liens permitted under Section 5.02(a)), (A) the Borrower shall, on
the date such Debt shall be incurred or issued, prepay the Advances pursuant to,
and in the order of priority set forth in, Section 2.06(b)(ii) in an aggregate
principal amount equal to the amount of the Net Cash Proceeds thereof to the
extent required to do so under Section 2.06(b)(ii), (B) such Lien shall be
subordinated to the Liens created under the Loan Documents on terms acceptable
to the Required Lenders and (C) the Required Lenders shall otherwise permit the
creation, incurrence, assumption or existence of such Lien and, to the extent
not otherwise permitted under Section 5.02(b), of such Debt, (v) amend this
Section 8.01, or (vi) limit the liability of any Loan Party under any of the
Loan Documents, (b) no amendment, waiver or consent shall, unless in writing and
signed by the Required Lenders and each Lender that has a Commitment under the
Term Loan Facility, AXELs Series A Facility, AXELs Series B Facility or Working
Capital Facility if affected by such amendment, waiver or consent, (i) increase
the Commitments of such Lender or subject such Lender to any additional
obligations, (ii) reduce the principal of, or interest on, the Notes held by
such Lender or any fees or other amounts payable hereunder to such Lender, (iii)
postpone any date fixed for any payment of principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to such
Lender or (iv) change the allocation or the order of application of any
prepayment set forth in Section 2.06 in any manner that materially affects such
Lender and (c) no amendment, waiver or consent shall, unless in writing and
signed by (i) the Required Lenders and each New AXELs Series B Lender, waive any
of the conditions specified in Section 3.04 or, in the case of the making of New
AXELs Series B Advances, Section 3.02 or (ii) the Required Lenders waive any of
the conditions specified in Section 3.05; provided further that no amendment,
waiver or consent shall, unless in writing and signed by each Issuing Bank in
addition to the Lenders required above to take such action, affect the rights or
obligations of the Issuing Banks under this Agreement; and provided further that
no amendment, waiver or consent shall, unless in writing and signed by an Agent
in addition to the Lenders required above to take such action, affect the rights
or duties of such Agent under this Agreement.
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SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered, if to the Borrower, at its address at AMF
Bowling Worldwide, Inc., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, with a copy to ▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.; if to any
Initial Lender or any Initial Issuing Bank, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender Party,
at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender Party; if to the Collateral Agent, at its
address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
and if to the Administrative Agent, at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; or, as to the
Borrower or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Administrative Agent. All such notices
and communications shall (a) when mailed, be effective three Business Days after
the same is deposited in the mails, (b) when mailed for next day delivery by a
reputable freight company or reputable overnight courier service, be effective
one Business Day thereafter, and (c) when sent by telegraph, telecopier or
telex, be effective when the same is confirmed by telephone, telecopier
confirmation or return telecopy or telex answerback, respectively, except that
notices and communications to the Administrative Agent pursuant to Article II,
III or VII shall not be effective until received by the Administrative Agent.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender Party or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand (i) all costs and expenses of the Arrangers and the Agents in
connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents (including, without limitation,
(A) all due diligence, collateral review, syndication, transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the reasonable fees and expenses of counsel
(including, without limitation, local or foreign counsel) for the Arrangers and
the Agents with respect thereto, with respect to advising each of the
Administrative Agent and the Collateral Agent as to its rights and
responsibilities, or the perfection, protection or
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preservation of rights or interests, under the Loan Documents, with respect to
negotiations with any Loan Party or with other creditors of any Loan Party or
any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of the Agents and
the Lender Parties in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation, any bankruptcy, insolvency or other
similar proceeding affecting creditors' rights generally (including, without
limitation, the reasonable fees and expenses of counsel (including, without
limitation, local or foreign counsel) for each Agent and each Lender Party with
respect thereto).
(b) The Borrower agrees to indemnify and hold harmless each Agent,
each Arranger, each Lender Party and each of their Affiliates and their
officers, trustees, directors, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Facilities, the actual or proposed use of the proceeds
of the Advances or the Letters of Credit, the Loan Documents or any of the
transactions contemplated thereby, including, without limitation, any
acquisition or proposed acquisition (including, without limitation, the
Acquisition and any of the other transactions contemplated hereby) by the Equity
Investors or any of their Subsidiaries or Affiliates of all or any portion of
the stock or substantially all the assets of the Company or any of its
Subsidiaries or (ii) the actual or alleged presence of Hazardous Materials on
any property of any Loan Party or any of its Subsidiaries or any Environmental
Action relating in any way to any Loan Party or any of its Subsidiaries, in each
case whether or not such investigation, litigation or proceeding is brought by
any Loan Party, its directors, shareholders or creditors or an Indemnified Party
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated (but excluding any such claims,
damages, losses, liabilities and expenses (A) of any Indemnified Party to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct or (B)
arising from disputes among two or more Lender Parties (but not including any
such dispute that involves a Lender Party to the extent that such Lender Party
is acting in any different capacity (such as an Agent or Arranger) or to the
extent it involves syndication activities). The Borrower also agrees not to
assert any claim against any Agent, any Lender Party or any of their Affiliates,
or any of their respective officers, directors, trustees, employees, attorneys
and agents, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Facilities, the
actual or proposed use of the proceeds of the
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Advances or the Letters of Credit, the Loan Documents or any of the transactions
contemplated thereby.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.01(c), 2.06, 2.09(b)(i) or
2.10(d), acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, or by an Eligible Assignee to a Lender Party other than on
the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 8.07 as a result
of a demand by the Borrower pursuant to Section 8.07(a), the Borrower shall,
upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender Party to fund or
maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
8.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the Obligations of the Borrower now or hereafter existing under this
Agreement and the Note or Notes (if any) held by such Lender Party, irrespective
of whether such Lender Party shall have made any demand under this Agreement or
such Note or Notes and although such obligations may be unmatured. Each Lender
Party agrees
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promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender Party and
its respective Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender Party and its respective Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
when the Third Amendment shall have been executed by the Borrower and the Agents
and when the Administrative Agent shall have been notified by the Required
Lenders that such Lender Parties have executed the Third Amendment and the
conditions precedent set forth in the Third Amendment and in Section 3.05 have
been satisfied in full, and thereafter shall be binding upon and inure to the
benefit of the Borrower, each Agent and each Lender Party and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
(and, so long as no Default shall have occurred and be continuing, if demanded
by the Borrower (following a demand by such Lender pursuant to Section 2.10 or
2.12 or if such Lender shall be a Defaulting Lender) upon at least 5 Business
Days' notice to such Lender and the Administrative Agent, will) assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement and the other Loan Documents (including, without limitation, all
or a portion of its Commitment or Commitments, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) each such assignment
shall be of a uniform, and not a varying, percentage of all rights and
obligations under and in respect of one or more Facilities, (ii) except in the
case of an assignment to a Person that, immediately prior to such assignment,
was a Lender or an assignment of all of a Lender's rights and obligations under
this Agreement, the amount of the Commitment or Commitments of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000, (iii) each such assignment shall be to an
Eligible Assignee, (iv) each such assignment made as a result of a demand by the
Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower
after consultation with the Administrative Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement and the other Loan Documents or an assignment of a portion of
such rights and obligations made concurrently with another such assignment or
other such assignments that together cover all of the rights and obligations of
the assigning Lender under this Agreement and the other Loan Documents, (v) no
Lender shall be obligated to make any such assignment as a result of a demand by
the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall
have received one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender,
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141
together with accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement, and
(vi) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $1,500 for each Assignment
and Acceptance between a Lender and one of its Affiliates or another Lender or
$3,000 for each other Assignment and Acceptance, provided, however, that for
each such assignment made as a result of a demand by the Borrower pursuant to
this Section 8.07(a), the Borrower shall pay to the Administrative Agent the
applicable processing and recordation fee.
(b) Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in such Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as
the case may be, hereunder and (y) the Lender or Issuing Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(other than its rights under Sections 2.10, 2.12 and 8.04 to the extent any
claim thereunder relates to an event arising prior to such assignment) and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's or Issuing Bank's rights and obligations under this Agreement, such
Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or any other instrument or document
furnished pursuant hereto or thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will,
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independently and without reliance upon any Agent, such assigning Lender Party
or any other Lender Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but only for
this purpose) as the agent of the Borrower, shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lender Parties and the Commitment under each Facility of, and
principal amount of the Advances owing under each Facility to, each Lender Party
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lender Parties shall treat each Person whose name
is recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender Party at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and the other Agents. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes a new Note to the order of such Eligible Assignee
in an amount equal to the Commitment assumed by it under a Facility pursuant to
such Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder under such Facility, a new Note to the order of the
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or A-4 hereto, as the case may
be.
(f) Each Issuing Bank may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under the undrawn portion of its
Letter of Credit
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Commitment at any time; provided, however, that (i) except in the case of an
assignment to a Person that immediately prior to such assignment was an Issuing
Bank or an assignment of all of an Issuing Bank's rights and obligations under
this Agreement, the amount of the Letter of Credit Commitment of the assigning
Issuing Bank being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance with respect to such assignment) shall
in no event be less than $5,000,000 and shall be in an integral multiple of
$1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible
Assignee and (iii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with a processing and recordation fee of
$3,000.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the
other Lender Parties shall continue to deal solely and directly with such Lender
Party in connection with such Lender Party's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any Loan Document,
or any consent to any departure by any Loan Party therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, release any Guarantor or Guarantors to the extent that such
release would have the effect of releasing all or substantially all of the
Collateral, or release all or substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights
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under this Agreement (including, without limitation, the Advances owing to it
and the Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 8.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.09. No Liability of the Issuing Banks. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
any Issuing Bank nor any other Lender Party nor any of their respective officers
or directors shall be liable or responsible for: (a) the use that may be made of
any Letter of Credit or any acts or omissions of any beneficiary or transferee
in connection therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; (c)
payment by such Issuing Bank against presentation of documents that do not
comply with the terms of a Letter of Credit, including failure of any documents
to bear any reference or adequate reference to the Letter of Credit; or (d) any
other circumstances whatsoever in making or failing to make payment under any
Letter of Credit, except that the Borrower shall have a claim against such
Issuing Bank, and such Issuing Bank shall be liable to the Borrower, to the
extent of any direct, but not consequential, damages suffered by the Borrower
that the Borrower proves were caused by (i) such Issuing Bank's willful
misconduct or gross negligence in determining whether documents presented under
any Letter of Credit comply with the terms of such Letter of Credit or (ii) such
Issuing Bank's willful failure to make lawful payment under a Letter of Credit
after the presentation to it of a draft and certificates strictly complying with
the terms and conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, such Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
SECTION 8.10. Confidentiality. Neither any Agent nor any Lender
Party shall disclose any Confidential Information to any Person without the
consent of the Borrower, other than (a) to such Agent's or such Lender Party's
Affiliates and their officers, directors, partners, employees, agents and
advisors and to actual or prospective Eligible Assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, provided that, other than with respect to
Confidential Information otherwise permitted to be disclosed pursuant to clause
(d) below, such Agent or Lender Party shall, unless prohibited by applicable law
or regulation or court order, give
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notice to the Borrower of any such requirement to disclose such Confidential
Information, and, if practicable, such notice shall be given prior to such
disclosure, provided, however, that the failure to give such notice shall not
prohibit such disclosure, (c) to any rating agency when required by it, provided
that, prior to any such disclosure, such rating agency shall undertake to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender Party and (d) as requested or required
by any state, federal or foreign authority or examiner or the National
Association of Insurance Commissioners or any state or federal authority
regulating such Lender Party.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in any New York State or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
SECTION 8.12. Release of Collateral. Upon the sale, lease, transfer
or other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral) in accordance with
the terms of the Loan Documents, the Collateral Agent will, at the Borrower's
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral Documents
in accordance with the terms of the Loan Documents.
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SECTION 8.13. Governing Law; Waiver of Jury Trial. This Agreement
and the Notes shall be governed by, and construed in accordance with, the laws
of the State of New York. Each of the Borrower, the Agents and the Lender
Parties irrevocably waives all right to trial by jury in any action, proceeding
or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to any of the Loan Documents, the Advances or the actions of any Agent
or any Lender Party in the negotiation, administration, performance or
enforcement thereof.
153
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
AMF BOWLING WORLDWIDE INC.
(f/k/a AMF Group Inc.)
By____________________________________
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT
PARTNERS L.P.,
as Syndication Agent
By____________________________________
Title:
CITIBANK, N.A.,
as Administrative Agent
By____________________________________
Title:
CITICORP USA, INC.,
as Collateral Agent
By____________________________________
Title:
154
AMSOUTH BANK
By____________________________________
Title:
155
ABN AMRO BANK N.V.
By____________________________________
Title:
By____________________________________
Title:
156
AERIES FINANCE LTD.
By____________________________________
Title:
ABN AMRO BANK N.V.
By____________________________________
Title:
By____________________________________
Title:
157
ALLSTATE LIFE INSURANCE
COMPANY
By____________________________________
Title:
By____________________________________
Title:
158
AMARA - 2 FINANCE LTD.
By____________________________________
Title:
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By____________________________________
Title:
160
COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENNE
By____________________________________
Title:
By____________________________________
Title:
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇
AND GRAND CAYMAN
BRANCHES
By____________________________________
Title:
By____________________________________
Title:
162
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By____________________________________
Title:
163
KEYPORT LIFE INSURANCE
COMPANY
By Chancellor LGT Senior Secured
Management, Inc., as
Portfolio Advisor
By____________________________________
Title:
164
CREDITANSTALT BANKVEREIN
By____________________________________
Title:
By____________________________________
Title:
165
COMERICA BANK
By____________________________________
Title:
166
CAISSE NATIONALE DE CREDIT
AGRICOLE
By____________________________________
Title:
167
BANKBOSTON, N.A.
By____________________________________
Title:
168
BANKAMERICA BUSINESS CREDIT,
INC.
By____________________________________
Title:
169
LENDERS
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT
PARTNERS L.P.
By____________________________________
Title:
170
CITICORP USA, INC.
By____________________________________
Title:
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By____________________________________
Title:
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
By____________________________________
Title:
173
BANKERS TRUST
By____________________________________
Title:
174
NATEXIS BANQUE BFCE
By____________________________________
Title:
By____________________________________
Title:
175
CAPTIVA II FINANCE LTD.
By____________________________________
Title:
176
CIBC INC.
By____________________________________
Title:
177
COMMERCIAL LOAN FUNDING
TRUST I
By ▇▇▇▇▇▇ ▇▇ Inc. not in its
individual capacity but solely as
Administrative Agent
By____________________________________
Title:
178
CORESTATES BANK N.A.
By____________________________________
Title:
179
CRESTAR BANK
By____________________________________
Title:
180
FIRST SOURCE FINANCIAL LLP
By First Source Financial, Inc.,
its agent/manager
By____________________________________
Title:
181
GENERAL ELECTRIC CAPITAL
CORPORATION
By____________________________________
Title:
182
MARINE MIDLAND BANK
By____________________________________
Title:
183
MEDICAL LIABILITY MUTUAL
INSURANCE CO.
By Chancellor LGT Senior Secured
Management, Inc. as
Investment Manager
By____________________________________
Title:
184
MELLON BANK, N.A.
By____________________________________
Title:
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇
BRANCH
By____________________________________
Title:
By____________________________________
Title:
186
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE
PORTFOLIO
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset
Management, L.P., as
Investment Advisor
By____________________________________
Title:
187
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.
By____________________________________
Title:
188
▇▇▇▇▇▇▇ ▇▇▇▇▇ DEBT STRATEGIES
FUND, INC.
By____________________________________
Title:
189
SENIOR HIGH INCOME PORTFOLIO
By____________________________________
Title:
190
METROPOLITAN LIFE INSURANCE
COMPANY
By____________________________________
Title:
191
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By____________________________________
Title:
192
ML CBO IV (CAYMAN) LTD.
By Protective Asset Management
L.L.C., as Collateral Agent
By____________________________________
Title:
193
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR
FUNDING, INC.
By____________________________________
Title:
194
OCTAGON CREDIT INVESTORS
LOAN PORTFOLIO
(a unit of Chase Manhattan Bank)
By____________________________________
Title:
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRIME RATE
TRUST
By____________________________________
Title:
196
PNC BANK, NATIONAL
ASSOCIATION
By____________________________________
Title:
197
▇▇▇▇▇▇▇ NATIONAL LIFE
INSURANCE COMPANY
By PPM AMERICA, INC.,
as attorney in fact
By____________________________________
Title:
198
PAMCO CAYMAN LTD.
By Protective Asset Management,
L.L.C, as Collateral Agent
By____________________________________
Title:
199
ROYALTON
By PACIFIC INV. MGT. CO., its
Investment Advisor
By____________________________________
Title:
200
THE SAKURA BANK, LIMITED
By____________________________________
Title:
201
SENIOR DEBT PORTFOLIO
By Boston Management and Research
as Investment Advisor
By____________________________________
Title:
202
SIGNET BANK
By____________________________________
Title:
203
SOCIETE GENERALE
By____________________________________
Title:
204
THE TRAVELERS INSURANCE
COMPANY
By____________________________________
Title:
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇
By____________________________________
Title:
▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CAPITAL
PRIME RATE INCOME TRUST
By____________________________________
Title: